Defendant's Brief in Support of Motion for Summary Judgment and in Opposition to Plaintiffs' Motion to Further Amend Complaint

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of North 

Carolina, et al., DEFENDANT’S BRIEF IN SUPPORT OF 
MOTION FOR SUMMARY JUDGMENT 

Defendants, AND IN OPPOSITION TO PLAINTIFFS’ 

MOTION TO FURTHER AMEND THE 
and COMPLAINT 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

This matter is before the Court on defendants’ motion for summary judgment seeking 

dismissal of plaintiffs’ equal protection claim challenging the constitutionality of North Carolina’s 

1997 Congressional Redistricting Plan (“1997 Plan”) on the grounds that Districts 1 and 12 are 

racially gerrymandered districts in which considerations of race predominated. (Amended 

Complaint § 23, 25, 28.) Summary judgment dismissing this cause should be granted on the 

grounds that plaintiffs’ claim is barred by the doctrine of claim preclusion. 

Defendants move to dismiss plaintiff James Ronald Linville on the additional ground that 

he lacks standing to challenge Districts 1 and 12. In addition, defendants oppose plaintiff Linville’s  



  

motion to further amend the complaint to challenge the transfer of his precinct in the 1997 Plan from 

District 12 to District 5 on the grounds of bad faith, undue delay and futility. The facts relevant to 

each of these arguments are included within the arguments themselves. 

ARGUMENT 

I. SUMMARY JUDGMENT STANDARD. 

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall 

be granted if there is no genuine issue as to any material fact and the moving party is entitled to 

judgment as a matter of law. Under this standard, the moving party must demonstrate the lack of 

a genuine issue of fact for trial, and if that burden is met, the party opposing the motion must show 

evidence of a genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317,324,106 S. Ct. 2548, 

2553,91 L. Ed. 2d 265,274 (1986). For purposes of summary judgment, facts are material if they 

tend to prove or Ssprovethe elements of a claim, and “only disputes over facts that might affect the 

outcome of the suit under the governing law will properly preclude the entry of summary judgment.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 

(1986). Summary judgment is appropriate unless plaintiffs’ evidence is sufficient to establish a 

reasonable probability of the existence of the essential elements of their claims; evidence sufficient 

to establish a mere possibility that plaintiffs can establish the essential elements of their claim will 

not suffice. Id. at 250, 160 S. Ct. at 2511, 91 L. Ed. 2d at 213. See also Autry v. North Carolina 

Dep't of Human Resources, 820 F.2d 1384 (4th Cir. 1987); Lovelace v. Sherwin-Williams Co., 681 

F.2d 230, 242 (4th Cir. 1982). 

 



  

Hn. PLAINTIFFS’ ACTION IS BARRED BY THE DOCTRINE OF CLAIM 

PRECLUSION. 

Defendants are entitled to judgment in their favor on the grounds of claim preclusion, a 

defense set out in the amendment to their Answer to the Amended Complaint allowed by Order of 

this Court on August 31, 1999. Specifically, plaintiffs are bound by the Judgment issued in Shaw 

v. Hunt, 92-202-CIV-5-BR (Attachment A) (hereafter “Att.”), holding that the 1997 Plan cured the 

constitutional defect that previously existed in District 12, and otherwise not ruling on the 1997 Plan, 

as urged by the Shaw plaintiffs. That judgment is binding on two plaintiffs here, Martin Cromartie 

and Chandler Muse, because they were plaintiffs in Shaw at the time of that judgment. Plaintiffs 

Cromartie and Muse had a full and fair opportunity to litigate their claims concerning District 1 in 

Shaw. Bétause they chose not to do so. they are barred from their attempt to pursue the claim in this 

litigation. The remaining plaintiffs are equally barred from challenging District 1 on the grounds 

that the Shaw plaintiffs were their “virtual representatives.” Similarly, the adverse judgment in 

Shaw holding District 12 constitutionalis attributable to all the plaintiffs in this case and bars them 

from litigating the constitutionality of District 12. Accordingly, this Court should grant summary 

judgment for defendants against plaintiffs. 

Under the doctrine of claim preclusion, formerly referred to more frequently as “res 

judicata,” “a final judgment on the merits of an action precludes the parties or their privies from 

relitigating issues that were or could have been raised in that action.” Federated Dep't Stores, Inc. 

v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 2428, 69 L. Ed. 2d 103, 108 (1981). E.g., Allen v. 

McCurry, 449 U.S. 90,94,101 S. Ct. 411,414, 66 L. Ed. 2d 308, 313 (1980). In Shaw, following 

 



remand by the Supreme Court after it ruled North Carolina’s 1992 congressional redistricting plan 

unconstitutional, the State adopted and submitted the 1997 Plan, the one at issue here. Mr. 

Cromartie and Mr. Muse were among the Shaw plaintiffs at the time of the remand. Indeed, they 

had been added as plaintiffsin 1996 for the very purpose of challenging District 1 (although it was 

the 1992 plan at issue then). See Shaw Plaintiffs’ and Plaintiff-Intervenors’ Motion For Leave To 

File An Amended Complaint Pursuant To Rule 15(a) Fed. R. Civ. P. And Local Rule 4.00 (Att. B); 

Shaw Second Amended Complaint For Preliminary And Permanent Injunction (Att. C); and Shaw 

Order (July 12, 1996) (Att. D). Mr. Cromartie and Mr. Muse were and are residents of District 1 in 

the 1997 Plan, a fact which gave them standing to challenge District 1 in Shaw just as it otherwise 

would give them standing to challenge District 1 in this litigation.! However, the Shaw plaintiffs, 

including plaintiff Cromartie and plaintiff Muse, deliberately chose not to seek a decision on the 

validity of District 1 in the 1997 Plan from the Shaw court. In fact. following the adoption of the 

1997 Plan, the Shaw plaintiffs filed their Response To Order Of June 9, 1997 (Att. E), in which they 

contended that District 1 in the 1997 Plan was unconstitutional, but that plaintiffs did not have 

standing to contest the new plan. They specifically requested that the “Court not approve or 

otherwise rule on the validity of the precleared congressional redistricting plan submitted to it on 

April 1, 1997.” (Response, Att. E at 3, 92.) The Shaw court took them at their word only as to 

District 1, ruling in its Judgment of September 15, 1997, that the 1997 Plan was approved “as 

  

Plaintiffs Cromartie and Muse are alleged in the Amended Complaint And Motion 

For Preliminary And Permanent Injunction to be residents of Edgecombe County and registered 

voters in District 1 in the 1997 Plan. (Amended Complaint And Motion For Preliminary And 

Permanent Injunction at 9 1, 31.) They testified in their depositions that they live in Tarboro, in 

Edgecombe County. Although they were at times unsure of their district number or which plan was 

which, their testimony supports the contention that they are residents of District 1 in the 1997 Plan. 

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having adequately remedied the specific constitutional violation respecting former congressional 

District 12 that was found by the Supreme Court of the United States in Shaw v. Hunt” and further 
  

dismissing the challenge to District 1 in the 1992 plan as moot, and dissolving the injunction 

previously entered against the holding of congressional elections pending the adoption of a remedial 

congressional redistricting plan. As invited, the Shaw court did not rule on the new District 1 at all. 

(Shaw Judgment, Att. A.) That judgment, and its no-decision as to District 1, are binding on 

plaintiffs Cromartie and Muse, and their co-plaintiffs. Having made their choice, they must take the 

consequences. 

Clearly, the Shaw plaintiffs could have challenged the 1997 Plan’s District 1 in Shaw. Just 

as they amended their complaint in this case in 1997 to include the 1997 Plan (see Amended 

Complaint And Motion For Preliminary And Permanent Injunction), they could have amended 

instead in Shaw to challenge the 1997 Plan. That they could have amended in Shaw is not debatable 

-- if the amendment to challenge the 1997 Plan was permissible in this litigation, as this Court has 

held, then it must equally have been permissible in Shaw if the Shaw plaintiffs had only made that 

motion. Indeed, it would have made more sense to do so in Shaw since that court was thoroughly 

familiar with the background and proceedings leading up to enactment of the 1997 Plan. The failure 

to amend in Shaw, and the decision to amend in this case, can only be attributed to tactical 

maneuvering of plaintiffs’ counsel, if not of plaintiffs themselves. 

Claim preclusionis not merely about claims that were ruled on in a prior proceeding, but also 

about claims that could have been raised and ruled on in the prior proceeding. The doctrine of “res 

judicata” or “claim preclusion” 

 



  

rests upon considerations of economy of judicial time and public policy favoring the 

establishment of certainty in legal relations. The rule provides that when a court of 

competent jurisdictionhas entered a final judgment on the merits of a cause of action, 

the parties to the suit and their privies are thereafter bound ‘not only as to every 

matter which was offered and received to sustain or defeat the claim or demand, but 

as to any other admissible matter which might have been offered for that purpose.’ 

Cromwell v. County of Sac, 94 U.S. 351, 352,24 L. Ed. 195. 

Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591,597, 68 S. Ct. 715,719, 92 L. Ed. 898, 

905-06 (1948). Economy of judicial time and public policy favored resolution of the challenge to 

District 1 in Shaw, not in this suit which, though pending since 1996, had been stayed during the 

Shaw proceedings. The Shaw plaintiffs, far from seeking review of their District 1 claim in Shaw, 

at the same time they were asserting that District 1 was unconstitutional, affirmatively requested the 

Shaw court not to rule on the 1997 Plan, presumably for the very purpose of manipulating the 

judicial system so they could challenge the 1997 Plan, and the First District, before this Court. 

Because they could have raised their claim against District 1 in Shaw and chose not to do so, 

plaintiffs Cromartie and Muse forfeited their right to raise that same claim here. The Shaw Judgment 

established a bar to re-litigation of the claims determined in that lawsuit and to the claims that could 

have been raised in that lawsuit. As to District 1, it is clear that there were plaintiffs in Shaw, 

including Mr. Cromartie and Mr. Muse, who could and should have challenged the 1997 Plan’s 

District 1 in that case. As to District 12, the Shaw court specifically ruled on the validity of the 

district in the 1997 Plan. It ruled that the 1997 Plan had “adequately remedied the specific 

constitutional violation respecting former congressional District 12 that was found by the Supreme 

Court of the United States in Shaw v. Hunt.” (Shaw Judgment, Att. A.) That specific constitutional 
  

violation, of course, was that District 12 was a “racial gerrymander” that classified voters by race, 

but which did not survive equal protection review under strict scrutiny standards. See Shaw v. Hunt, 

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*® o® 
517U.S.899,116S. Ct. 1894, 135 L. Ed.2d 207 (1996). When the Shaw court stated that the 1997 

Plan “adequately remedied the specific constitutional violition” presented by District 12 in the old 

plan, it must have meant more than that the General Assembly had adopted a new plan. The court 

could have merely said that the old plan had been replaced and that the Shaw plaintiffs chose not to 

challenge the new District 12. It did not do that. Instead, it ruled affirmatively that the new District 

12 and the 1997 Plan “adequately remedied” the adjudicated defect of the old plan -- i.e., the defect 

of being racially gerrymandered without being justified as narrowly tailored to further a compelling 

state interest. The Shaw court’s affirmative ruling that the defect had been remedied established by 

judgment that the new District 12 did not have such a defect. Thus, the validity of the 1997 Plan’s 

District 12 vis-a-vis racial gerrymandering claims has been adjudicated to judgment in Shaw. 

Regardless of how plaintiffs feel about it or whether this Court disagrees with the Shaw judgment, 

that judgment has preclusive effect. See Federated Dep't Stores, 452 U.S. at 398, 101 S. Ct. at 

2428, 69 L. Ed. 2d at 108 (res judicata consequences not affected “by the fact that the judgment may 

have been wrong or rested on a legal principle subsequently overruled in another case” or by 

“erroneous conclusion” of court in first case). Consequently, the doctrine of claim preclusion bars 

plaintiffs in that case, and others, including plaintiffs in this case, from re-litigating that issue. 

All the plaintiffs in this case are bound by the decision in Shaw under the doctrine of “virtual 

representation.” The concept of virtual representation is an extension of the principle that claim 

preclusion bars not only persons who actually participated in a prior lawsuit, but also those in privity 

with the earlier participants. Courts have repeatedly recognized that a party may be bound by a 

prior judgment despite not being a party to the prior judgment, or formally in privity with parties to 

the prior judgment, when his interests were closely aligned with those of a party to the prior action 

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and there are other indicia that the parties to the prior action were serving as the “virtual 

representatives” of the current parties. See 4hngv. Allsteel, Inc., 96 F.3d 1033, 1037 (7th Cir. 1996); 

Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345-46 (2d Cir. 1995); Gonzalez v. 

Banco Cent. Corp., 27 F.3d 751, 761 (1st Cir. 1994); Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 

(9th Cir. 1993); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1297 (5th Cir. 1992; 

Jaffree v. Wallace, 837 F.2d 1461, 1467-68 (11th Cir. 1988). Factors to be considered in 

(199 

determining whether “virtual representation” exists include “‘participation in the first litigation, 

apparent consent to be bound, apparent tactical maneuvering, [and] close relationships between the 

parties and nonparties.” Jaffree, 837 F.2d at 1467 (quoting 18 CHARLES ALAN WRIGHT & ARTHUR 

R. MILLER, FEDERAL PRACTICE & PROCEDURE, § 4457 at 494-99 (2d ed. 1987)). Virtual 

representation has been described as having “a pronounced equitable dimension” and applying only 

when the new party “has had actual or constructive notice of the earlier litigation and the balance of 

the relevant equities tips in favor of preclusion.” Gonzalez, 27 F.2d at 761 (footnote omitted). In 

this case, consideration of all the relevant factors establishes that preclusion is called for, and thus 

the plaintiffs must be, and are, precluded from challenging the 1997 Plan. 

Each of the plaintiffs to this litigation was fully aware of the Shaw suit and, indeed, was in 

touch with their current counsel, Robinson O. Everett (hereafter “Everett”), during the Shaw suit. 

Everett, of course, was both counsel and a named plaintiffin Shaw, and he, in effect, solicited friends 

and relatives, some of whom solicited some of their friends, to become plaintiffs in this case when 

it suited him. Specifically, Mr. Cromartie, of course, eventually became a plaintiff in Shaw, when 

 



  

Everett suggested it. (Cromartie (Draft) Deposition (hereinafter “Dep.”) at 29.7) Even before that, 

he was aware of the suit and had communicated with Everett from time to time about it long before 

becaming a plaintiff. He knew Everett from when Cromartie attended Duke Law School and Everett 

was teaching there. (Cromartie (Draft) Dep. at 14, 17-18.) Mr. Cromartie ultimately recruited Mr. 

Muse and Mr. Weaver to be plaintiffs as well, and when Mr. Weaver died, he asked Mrs. Weaver 

to “carry on his fight.” (Cromartie (Draft) Dep. at 61-62.) Mr. Bourne talked to his friend Mr. 

Muse from time to time, and he became a plaintiff at a later date, at the same time Glennes Weeks 

was dropped as a plaintiff, pursuant to motion of the plaintiffs in December, 1997. The remaining 

plaintiffsare R. O. Everett (“plaintiff Everett”), not the attorney in this case. but his first cousin, and 

J.H. Froelich, Jr., a long-time friend and business associate of attorney Everett, plus James Ronald 

Linville (who is not a resident of District 12 in the 1997 Plan and whom defendants are seeking to 

have dismissed). Plaintiff Everett was aware of the Shaw suit and became a plaintiff when his cousin 

“said that he needed to start over.” (R.O. Everett (Draft) Dep. at 33.) “He called me and said he 

needed a plaintiffin Rowan County.” (Id) While plaintiff Everett was willing to join the lawsuit, 

it was not his initiative, but his cousin’s. (/d. at 34.) Froelich testified in his deposition that he had 

been in business with attorney Everett and with his mother as well. (Froelich (Draft) Dep. at 13.) 

  

2 Because of the compressed discovery schedule on remand, the depositions are not yet 

available in final form. Indeed, some are not even available in draft form. For purposes of this 

motion, defendants will cite to the draft depositions when available or to the testimony generally, 

as necessary, from depositions not yet available even in draft form. The depositions themselves will 

be filed with the Court when available. 

3 Mrs. Weaver was “substituted” for her deceased husband by order of this Court filed 

September 13, 1999, and her deposition indicated only that she professed to believe in the cause and 

that she was indeed attempting to carry on as her husband’s proxy. 

9 

 



  

Not only did he talk about the case with Everett from time to time, but he also executed a 

Declaration that was filed in Shaw. (Id. at 14-15.) Even Mr. Linville, who was not part of the circle 

of friends and relatives otherwise involved in this litigation, had been aware of the suit and called 

Everett and discussed it with him, offering his support, prior to the time he became a plaintiff. In 

fact, Linville apparently believed at the relevant time that he was in District 12 because, when he 

agreed to become a plaintiff, he understood that there was a need for plaintiffs who lived in 

District 12. (Linville (Draft) Dep. at 23.) 

Thus, all the plaintiffs in this litigation were fully aware of the Shaw suit and became 

involved when it suited counsel's judgment or wishes for them to become involved. They were in 

communication with counsel or with other plaintiffs long before they became parties to this suit and 

generally became parties when they were told they were needed. E.g.. Froelich (Draft) Dep. at 28- 

29; R.O. Everett (Draft) Dep. at33-34; Cromartie (Draft) Dep. at 33. This is not a case where the 

parties lacked notice of the prior suit or where they acted independently of the parties and attorneys 

in the prior suit. Instead, this is essentially an attempt to start Shaw over, with counsel for plaintiffs 

simply deciding which available sympathizers to plug into his lawsuit. 

Equally, the current plaintiffs understood Shaw to represent their interests. That is why they 

communicated with Everett telling him they supported the suit -- because they viewed Shaw as 

representing their interests just as much as those of the named plaintiffs in Shaw. For example, 

Linville called Everett and told him “‘I appreciate what you are doing for people that live out in the 

countryside.” (Linville (Draft) Dep. at 18.) Moreover, plaintiffs view their current suit as affecting 

or being for all voters, at least in their specific districts if not for the entire state. £.g., R.O. Everett 

(Draft) Dep. at 53; Cromartie (Draft) Dep. at 46-47, Froelich (Draft) Dep. at 31. In essence, then, 

10 

 



  

the plaintiffs perceive these suits, both Shaw and the current one, as suits brought for all residents 

and voters of the respective districts, if not of the entire state. Consequently, the new plaintiffs, who 

were not in the Shaw suit, clearly expected their interests to be represented by the plaintiffs in Shaw, 

and they expected the results of the Shaw case to affect them just as much as it did the original 

plaintiffs. 

Not only were the current plaintiffs willing to become plaintiffs in this suit when counsel 

suggested it, or when solicited by another plaintiff, but they have all allowed Everett to control this 

litigation to an uncommon degree. Typically, the plaintiffs were not sure whether they had ever read 

the complaint or any documents in this litigation and appeared utterly unaware of strategy or choices 

to be made in the litigation. FE.g., Cromartie (Draft) Dep. at 28 (with regard to motion to amend 

Shaw and Shaw complaint adding him, “I wouldn’t have felt that I had to read those.”); Linville 

(Draft) Dep. at 21 (with regard to amended complaint adding him as plaintiff, “I don’t believe I ever 

have seen it.”); R.O. Everett (Draft) Dep. at. 42-43 (believes Amended Complaint is like something 

in his file, which he would have Jooked through when received). Mr. Cromartie and Mr. Muse, 

both of whom are attorneys, seemed unaware of the tactics Everett took in requesting the Shaw court 

not to rule on the 1997 Plan, and then proceeding promptly to amend to challenge the 1997 Plan in 

this lawsuit. (Cromartie (Draft) Dep. at 38.) Indeed, Mr. Cromartie “thought we were going forward 

in a new case because the old case had been terminated” and “thought [this case] was filed after the 

Shaw case was disposed of.” (Id. at 41,46.) In essence, then, Everett determined the course of the 

litigation in Shaw and here, and plaintiffs are all persons who were aware of Shaw and ultimately 

  

4 Although their depositions are not yet available, the other plaintiffs also clearly left 

everything up to Everett; for instance, Mr. Bourne indicated he had not read the complaint. 

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joined Shaw and/or this suit in order to facilitate Everett’s continued pursuit of his theory with which 

they agreed. That they do not see this as “their” lawsuit is perhaps exemplified by the fact that none 

of the plaintiffs have any agreements or expectations concerning payment of attorney's fees or even 

expenses should plaintiffs not prevail. E.g., Cromartie (Draft) Dep. at 67; Everett (Draft) Dep. at 

73-74; Froelich (Draft) Dep. at 72-73; Linville (Draft) Dep. at 72-73.) Plaintiff Cromartie stated in 

his deposition “that if the case were lost and costs got assessed, I hope Robinson ls care of it and 

I don't. And certainly hope nobody I ask to get into it has to pay for having volunteered to be 

helpful.” (Cromartie (Draft) Dep. at 67.) They had no sense that they were asking Everett to bring 

their lawsuit for them, but instead were simply serving as plaintiffs in his lawsuit. 

Plaintiffs here were virtually represented by the Shaw plaintiffs because they were fully 

aware of Shaw and in touch with counsel at that time. Unquestionably, their interests were 

represented by the Shaw plaintiffs because of the nature of the suit. The fact that most of them were 

in touch with Shaw counsel, their current counsel, and became plaintiffs when he said he needed new 

plaintiffs illustrates the extent to which this suit is simply an attempt to continue the Shaw fight in 

a manner presumably believed by counsel to be more favorable to plaintiffs. Unquestionably, the 

plaintiffs in Shaw and in this suit had the same objective and the same incentives to achieve the 

common goal. Because they had the same incentive to litigate the validity of the congressional 

redistricting plan, on the same theories, the Shaw plaintiffs were the virtual representatives of the 

plaintiffs in this action. See N.4.A.C.P., Minneapolis Branch v. Metropolitan Council, 125 F.3d 

1171, 1174 (8th Cir. 1997) (virtual representation requires identity of interests of which the key is 

“incentive to litigate”) (holding that suit by students was barred with regard to claims about 

segregated housing on grounds of claim preclusion resulting from earlier suit by NAACP and 

12 i“ 

 



°® o® 
minority residents); see also Chase Manhattan Bank, N.A., 56 F.3d at 346 (noting that “precise issue 

is whether [prior plaintiff’s] incentives to pursue its lawsuit were substantially similar to Chase”). 

Claim preclusion resulting from virtual representation is especially appropriate in lawsuits of this 

sort, involving challenges to matters of public law, both because the claim is less personal and 

because “the number of plaintiffs with standing is potentially limitless.” Tyus v. Schoemehl, 93 F.3d 

449, 456 (8th Cir. 1996). Otherwise, such claims “would assume immortality.” Los Angeles Branch 

NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 741 (9th Cir. 1984); accord Tyus, 93 F.3d 

at 456. In Tyus, the Eighth Circuit Court of Appeals affirmed a district court ruling that the plaintiffs 

were bound by a prior lawsuit challenging the same St. Louis alderman ward boundaries. The 

overlapping of plaintiffs, the identity of counsel, the sharing of the same concern, the fact that it was 

a public law issue, and the tactical maneuvering that took place in that case all led to the result even 

though, in the prior suit, the plaintiffs had sought to withdraw prior to the granting of summary 

judgment for the city. Indeed, tactical maneuvering to avoid the effects or problems of the first 

action tips the balance towards applying claim preclusion. See Tyus, 98 F.3d at 455, citing Petit v. 

City of Chicago, 766 F. Supp. 607, 612 (N.D. Ill. 1991). The maneuvering in Tyus was to separate 

from an attorney with whom plaintiffs no longer agreed. In Sondel v. Northwest Airlines, Inc., 56 

F.3d 934, 940 (8th Cir. 1995), the court noted that counsel commented that an unfavorable result in 

the prior case would not preclude a federal class action, a statement that prompted the court to note 

that “res judicata is designed to prevent this type of successive litigation that allows second bites at 

the apple.” Here, for some reason, counsel chose not to do the logical thing, which would have been 

to proceed with Shaw and amend as necessary. Instead, he chose to urge the Shaw court not to rule 

on the 1997 Plan so that he could then turn around and amend in this case to ask this Court to rule  



on the 1997 Plan. This type of tactical maneuvering reinforces the conclusion that claim preclusion 

should be applied to prevent plaintiffs from litigating now what they, or the Shaw plaintiffs, 

previously litigated or had the chance to litigate. Accordingly, defendants submit that plaintiffs are 

all barred from pursuing their challenges against Districts 1 and 12 in the 1997 Plan, and this Court 

should enter judgment for defendants. 

III. PLAINTIFF LINVILLE LACKS STANDING AND HIS ATTEMPT TO FURTHER 

AMEND THE COMPLAINT SHOULD BE DENIED. 

The Amended Complaint filed in this action added James Ronald Linville as a plaintiff to 

challenge District 12 in the 1997 Plan and asserts (wrongly) that he is a registered voter in District 

12 and has standing to challenge the plan. (Amended Complaint 32.) Less than three weeks before 

trial, Linville has moved to further amend the complaint conceding that he is a registered voter in 

District 5 in the 1997 Plan, and now alleging that the transfer of his precinct from District 12 in 

North Carolina's 1992 Congressional Redistricting Plan (“1992 Plan”) into District 5 in the 1997 

Plan was predominantly motivated by race. (Motion to Amend Complaint] 32A.) Clearly, Linville 

lacks standing to challenge District 12 and his claim must be dismissed. Equally clearly, Linville 

cannot establish an equal protection challenge to District 5 as a racial gerrymander; nor has he 

alleged or can he prove any injury as a direct result of having personally been denied equal treatment 

on the grounds of race. His untimely, disingenuous attempt to further amend the complaint is futile 

and should be denied. 

A. LACK OF STANDING AND EVIDENCE OF PERSONAL INJURY. 

In determining whether there is a genuine issue for trial on the claim of plaintiff Linville, the 

Court “must view the evidence presented through the prism of the substantive evidentiary burden.”  



  

Anderson, 477 U.S. at 254,106 S. Ct. 2513,91 L. Ed. 2d at 215. Here, for example, on the issue of 

standing, the burden is on the “party who seeks the exercise of jurisdiction in his favor clearly to 

allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” 

United States v. Hays, 515 U.S. 737, 743, 115 S. Ct. 2431, 2435, 132 L. Ed. 635, 642 (1995) 

(quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215,231,110 S. Ct. 596, 607-08, 107 L. Ed. 2d 603, 622 

(1990)) (internal citations and quotations omitted). The burden on plaintiff to establish a racial 

gerrymander claim also is very demanding. Because federal court review of districting legislation 

represents a serious intrusion on the most vital of local functions, Miller, 515 U.S. at 915-16, 115 

S. Ct. at 2488, 132 L. Ed. 2d at 770, the test whether race was a legislature’s dominant and 

controlling rationale is a “demanding one” which subjects only “extreme instances of [racial] 

gerrymandering’ to strict scrutiny. Id at 928-29, 115 S. Ct. at 2497, 132 L. Ed. 2d at 790 

(O’Connor, J. concurring). 

In his deposition, Linville candidly admitted that his home precinct, Abbotts Creek #2, is in 

District 5 in the 1997 Plan. (Linville (Draft) Dep. at 33-34.) This comes as no surprise since the bill 

enacting the 1997 Plan sedi Gitlly lists this precinct within District 5. See Att. F (relevant page 

from 97C-27A-1,the 1997 Preclearance Submission (filed with the Court March 2, 1998)). Under 

U.S. v. Hays, a plaintiff who does not live in a challenged district does not suffer the special 

stigmatic or representational harms of a plaintiff who resides in a district determined to be a racially 

gerrymandered district. 

[Where] a plaintiff does not live in such a district, he or she does not suffer these 

special harms, and any inference that the plaintiff has personally been subjected to 

a racial classification would not be justified absent specific evidence tending to 

support that inference. Unless such evidence is present, that plaintiff would be 

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eo 0 CX 

asserting only a generalized grievance against governmental conduct of which he or 

she does not approve. 

515 U.S. at 745, 115 S. Ct. at 2436, 132 L. Ed. 2d at 643. Linville’s challenge to District 12 as a 

racial gerrymander does not give rise to an inverse claim regarding District 5. As the Hays court also 

held, the fact that the racial composition of an adjoining district would have been different if the 

legislature had drawn the challenged gerrymandered district in another way, “does not allege a 

cognizable injury under the Fourteenth Amendment.” 515 U.S. at 746, 115 S. Ct. at 2436-37, 132 

L. Ed. 2d at 644. The United States Supreme Court has never held that the racial composition of a 

particular voting district, without more, can violate the Constitution. /d. 

With regard to a claim by plaintiffs who live outside a district challenged as a racial 

gerrymander, the Hays court held that only those plaintiffs able to allege injury as a direct result of 

having personally been denied equal treatment may bring such a challenge: furthermore, such 

plaintiffs carry the burden of proving their standing. as well as their case on the merits. 515 U.S. at 

747,115 S. Ct. at 2437, 132 L. Ed. 2d at 644. Plaintiff Linville, based on his brief in support of his 

motion to further amend the complaint, is apparently attempting to amend the complaint to allege 

“personal” injury. The so called “unequal treatment” complained of is unrelated to his race. First 

Linville complains that his “overwhelmingly white” precinct was removed from District 12 and an 

adjacent precinct was substituted as the “land bridge” between “black” Winston-Salem and other 

parts of District 12. He also claims injury to his political participation based on the contortions of 

the 1997 district and personal injury based on living in a precinct so close to District 12 that “it 

sometimes is and other times is not included” in District 12. The final personal injury noted in the 

brief supporting the motion to amend is being separated politically from his father. 

16 

 



  

These allegations do not state a claim that Linville personally has been subjected to a racial 

classification. Linville’s alleged confusion about which district he is in is not a personal injury 

cognizable under the equal protection clause; nor does being separated politically from his father 

state a claim for relief. That Linville lives in a precinct that was in District 12 in the 1992 Plan, but 

is in District 5 in the 1997 Plan (and 1998 Plan), is no more than a generalized grievance against 

governmental conduct of which he does not approve. 515 U.S. at 745, 115 S. Ct. at 2436, 132 L. 

Ed. 2d at 643. 

Finally, Linville’s reference to another precinct being substituted for his precinct as a “land 

bridge” acknowledgesa geographicreality, not a racial classification. A comparison of the 1992 and 

1997 Plans clearly shows that three white, Republican precincts in Forsyth County were removed 

from District 12 and, in their place, four white Republican precincts in Davidson County were added 

to District 12, thereby significantly expanding the width of District 12 and enhancing its appearance.’ 

Even the most cursory comparison of the 1992 and 1997 Plans evidences that this exchange of 

precincts was to cure complaints about the narrow nature and bare contiguity of District 12 in 

Davidson County. See Att. I, comparison map of 1992 and 1997 Plans. 

Linville can offer no evidence that he personally has been subjected to a racial classification 

or racially discriminatory treatment based on the removal of his precinct from District 12 to District 

5 and, therefore, cannot carry his burden to establish standing to present an equal protection claim 

  

; Forysth precincts Broadbay #1, Abbott’s Creek #1 and Abbott's Creek #2 were 

removed from District 12 in the 1997 Plan. Davidson precincts Hampton, Arcadia, Midway and 

Abbott’s Creek were added to District 12 in the 1997 Plan. See Att.G, Precinct map. Based on the 

General Assembly’s redistricting computer database, all of these districts are overwhelmingly white 

and Republican in voting behavior. See Att. H. 

17 

 



  

under Shaw. Indeed, in his deposition testimony, Linville made no pretense of claiming personal 

injury based on a racial classification. His primary concern was that District 12 combined urban and 

rural areas which he felt had different needs and concerns. (Linville (Draft) Dep. at 19, 23, 34, 56- 

57, 77-78.) In his view, combining inner cities with rural areas dilutes the vote of the rural residents. 

(Linville (Draft) Dep. at 69, 75-77.) However, he did not mind his rural precinct being combined 

with urban Winston-Salem because both were in Forsyth County. (Linville (Draft) Dep. at 19-20.) 

Linville’s other concern in this case is his opposition to the division of counties in drawing 

congressional districts. To him, counties are cohesive groups. (Linville (Draft) Dep. at 25-26.) In 

drawing up a plan of his own, he combined whole counties. (Linville (Draft) Dep. at 65.) 

Interestingly enough, Linville’s plan included Forsyth, Stokes and Surry Counties in a district. 

These three counties are included in his current District 5. 

Quite candidly, Linville’s participation in this lawsuit is based on his dislike of District 12, 

and he 1s not unhappy to be in District 5. “I think the whole [D]istrict [12] is, on the face, a bad 

district. It still joins urban areas to rural areas now. That is not to say I am not happy to be in the 

5th because my neighbors are in the 5th.” (Linville (Draft) Dep. at 34.) Although Linville may 

believe that District 12 was drawn along racial lines, there is no evidence in his testimony that 

believes he personally is a victim of racial classification. 

B. NO BASIS FOR ALLOWING FURTHER AMENDMENT TO THE COMPLAINT. 

Less than three weeks elore trial, plaintiffs seek leave to further amend their amended 

complaint, on the pretext of conforming it to the evidence. The motion to amend should be denied 

as untimely, not in good faith and futile. 

18 

 



Whether to grant leave to amend is within the discretion of the district court. Foman v. 

leave to amend a pleading only when: (1) the amendment would be prejudicial to the opposing 

party, (2) there has been bad faith or undue delay on the part of the moving party, or (3) the 

amendment would be futile. Id. See also, Davis v. Piper Aircraft Corp., 615 F2d 606, 613 (4th Cir. 

1980); Shealy v. Winston, 929 F.2d 1009, 1013-14 (4th Cir. 1991). 

The timing of plaintiffs’ motion to amend in this case is not only tardy, but evidences bad 

faith and undue delay. Plaintiffs’ counsel appear to be asserting confusion over the location of 

plaintiff Linville’s precinct in the 1997 Plan, and imply that only now have they discovered evidence 

that Linville resides in District 5, not District 12. This is nonsense. First, the bill enacting the plan 

places Abbott’s Creek #2 in District 5; and second, in their answer to the Amended Complaint, filed 

November 25, 1997, defendants denied that plaintiff Linville was a registered voter in District 12, 

and also specifially stated as a defense that plaintiff Linville lacked standing to challenge either, 

District 1 or 12. See Defendants’ Answer to Amended Complaint § 32 and Second Defense. 

Linville’s admission at his deposition almost two years later that he lived in District 5, not District 

12, should have come as a surprise to no one. Plaintiffs have amended their complaint several times 

since the amended complaint was filed, both to add plaintiffs and to substitute a party. Although 

Fed. R. Civ. P. 15(a) provides that leave to amend “shall be freely given,” under the circumstances 

of this case, the delay in attempting to amend and the purported justification for the amendment 

support denial of plaintiffs’ motion. 

Plaintiffs’ motion should also be denied on the grounds of futility since the proposed 

amendment is clearly insufficient and unsupported by any evidence. As noted above, plaintiff 

19  



Linville’s concerns are the mixture of urban and rural areas in District 12 and the splitting of 

counties by District 12. He does not offer, and cannot offer, any evidence that his precinct was 

removed from District 12 based on racial motivation, nor can he establish personal injury as a result 

of a racial classification. Under the principles enunciated in Hays, Linville can state no claim for 

relief under the equal protection clause and the proposed further amendment to the complaint 1s 

futile. If the amendmentis allowed, this Court must immediately dismiss Linville’s claim for lack 

of standing as argued above. 

WHEREFORE, defendants respectfully request the Court to grant summary judgment 

dismissing the claims of the plaintiffs residing in Districts 1 and 12 on the grounds of claim 

preclusion and dismissing the claim of plaintiff Linville for lack of standing. 

This the 18th day of October, 1999. 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

Lod? 
Edwitr M. Speas, Jr. 

Chief Deputy Attorney General 

N.C. State Bar No. 4112 

  

Tiare B. Smiley 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

Norma S. Harrell 

Special Deputy Attorney General 

N.C. State Bar No. 6654 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

20  



CERTIFICATE OF SERVICE 

  

This 1s to certify that I have this day served a copy of the foregoing DEFENDANTS’ BRIEF 

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

PLAINTIFFS’ MOTION TO FURTHER AMEND THE COMPLAINT in the above captioned 

case upon all parties by hand delivery. 

Robinson O. Everett 

Suite 300 First Union Natl. Bank Bldg. 

301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

ATTORNEY FOR PLAINTIFFS 

Adam Stein 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

Suite 2 

312 W. Franklin Street 

Chapel Hill, NC 27516 

Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 

1444 1 Street NW, 10" Floor 

Washington, DC 20005 

ATTORNEYS FOR DEFENDANT-INTERVENORS 

This the 18th day of October, 1999. 

Li 8 foie by Jel 
Tiare B. Smil ey V 

Special Deputy Attorney Wa 

  

21 

 



eo 9 STATES DISTRICT COURT@) » 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

  

RUTH O. SHAW, MELVIN G. SHIMM, 

ROBINSON O. EVERETT, JAMES M. 
EVERETT, DOROTHY G. BULLOCK, 

MARTIN CROMARTIE, THOMAS 

CHANDLER MUSE, and GLENNES 

DODGE WEEKS 
DAVID W. DANIE 

U.S. DISTRICT] 
JUDGMENT IN A CIVIL CASE ¢ 1:37. NO.C 

  

Plaintiffs, 

and No. 92-202-CIV-5-BR 

JAMES ARTHUR "ART" POPE, BETTY 

S. JUSTICE, DORISTAIL, JOYCE 

LAWING, NAT SWANSON, RICK 

WOODRUFF, J. RALPH HIXON, 

AUDREY McBANE, SIM A. DELAPP, 

JR., RICHARD S. SAHLIE, 

HOWARD B. SMITH, H. M. "TED" 

TYLER, FERRELL L.BLOUNT, 11], 

HOWARD DANIELEY, ANTHONY G. 

POSEY, and RACHEL NANCE 

RUMLEY 

Plaintiff-Intervenors, 

v. 

JAMES B. HUNT, in his official 

capacity as Governor of the 

State of North Carolina, 

DENNIS A. WICKER, in his 

official capacity as Lieutenant 

Governor of the State of North 

Carolina and President of the 

Senate, HAROLD J. BRUBAKER, in 

his official capacity as 
Speaker of the North Carolina 

House of Representatives, JANICE 

FAULKNER, in her official 

capacity as Secretary of the 

State of North Carolina. 

THE NORTH CAROLINA STATE BOARD 

OF ELECTIONS, an official agency 

of the State of North Carolina, 

EDWARD J. HIGH, in his official 

capacity as Chairman of the 

North Carolina State Board of 

Elections, JEAN H. NELSON, in 

her official capacity as a 
member of the North Carolina 

State Board of Elections, LARRY 

LEAKE, in his official capacity 
as a member of the North 

Carolina State Board of 

Elections, DOROTHY PRESSER, in 

her official capacity as a 

member of the North Carolina 

State Board of Elections, and 

JUNE K. YOUNGBLOOD, in her 

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ATT. A 

 



official capacity as a 

member of the North Carolina 

  

State Board of Elections, 

Defendants, 

and 

RALPH GINGLES, VIRGINIA NEWELL, 

GEORGE SIMKINS, N. A. SMITH, 

RON LEEPER, ALFRED SMALLWOOD, 

DR. OSCAR BLANKS, REVEREND DAVID 

MOORE, ROBERT L. DAVIS, C.R. 
WARD, JERRY B. ADAMS, JAN 

VALDER, BERNARD OFFERMAN, 

JENNIFER MCGOVERN, CHARLES 

LAMBETH, ELLEN EMERSON, LAVONIA 

ALLISON, GEORGE KNIGHT, LETO 
COPELEY, WOODY CONNETTE, 

ROBERTA WADDLE and WILLIAM 
M. HODGES, 

Defendant-Intervenors. 
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Decision by Court. This action came to trial or hearing before the Court. The issues have been 
tried or heard and a decision has been rendered. 

IT IS ORDERED AND ADJUDGED : 

(1) 

(4) 

That the congressional redistricting plan submitted by the state defendants 
to this court for review on April 1, 1997 is hereby APPROVED as having 
adequately remedied the specific constitutional violation respecting former 
congressional District 12 that was found by the Supreme Court of the United 
States in Shaw v. Hunt. 
  

That this court's injunction entered on July 30, 1996, which inter alia. 

prohibited the conduct of further congressional elections pending approval 
of a remedial redistricting plan is hereby DISSOLVED; 

That the claim added by amendment to the complaint in this action on 
July 12, 1996, which challenged on "racial gerrymandering" grounds the 
creation of former congressional District 1, is hereby DISMISSED, without 
prejudice, as moot; and 

That defendants’ motion suggesting a schedule and precess for approving the 
state's new congressional redistricting plan is DENIED as moot. 

 



THIS JUDGMENT ells nim ON SEPTEMBER 0.9. COPIES TO: 
  

  

Robinson O. Everett 

Attorney at Law 

P.O. Box 586 

Thomas A. Farr 

Attorney at Law 

P. O. Box 19764 

Raleigh, NC 27619-9764 

Edwin M. Speas, Jr. 
Tiare B. Smiley 

N. C. Department of Justice 

P. O. Box 629 
Raleigh, NC 27602 

Adam Stein 

Anita Hodgkiss 

Attorneys at Law 

741 Kenilworth Ave., Suite 300 

Charlotte, NC 28204 

September 13, 1997 DAVID W. DANIEL, CLERK 

i 2 
   

   

  

—
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LAN 
Deputy Clerk 

   
  

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UNITED STATES DISTRICT COURT = £0) 
EASTERN DISTRICT OF NORTH CAROLINA ~~ = hii 

RALEIGH DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-BR ATE 1006 

RUTH O. SHAW, MELVIN G. SHIMM 
ROBINSON O. EVERETT, JAMES M. 
EVERETT, DOROTHY G. BULLOCK, 
MARTIN CROMARTIE, 
THOMAS CHANDLER MUSE, and 
GLENNES DODGE WEEKS, 

Plaintiffs. 

) 
) 
) 
) 
) 
) 
) 
) 
) 

JAMES ARTHUR “ART” POPE, ) 
BETTY S. JUSTICE, DORIS LIL, JOYCE ) 
LAWING, NAT SWANSON, RICK ) 
WOODRUFF, J. RALPH HIXSON, ) 
AUDREY McBANE, SIM DELAPP, JR, ) 
RICHARD SAHLIE, HOWARD SMITH, ) 
H.M. “TED” TYLER, FERRELL L. ) 
BLOUNT, III, H. HOWARD DANIELEY, ) 
ANTHONY G. POSEY, and RACHEL ~~) 
NANCE RUMLEY, ) 

) 
) 
) 
) 
) 
) 

Plaintiff-Intervenors 
> 

V. 

GOVERNOR JAMES B. HUNT, in his 

official capacity as Governor of the State of ) 

North Carolina; DENNIS A. WICKER, in ) 

his official capacity as Lieutenant Governor ) 

of the State of North Carolina and President ) 

of the Senate; HAROLD J. BRUBAKER, in) 

his official capacity as Speaker of the North ) 

Carolina House of Representatives; ) 

JANICE FAULKNER, in her official ) 

capacity as Secretary of the State of ) 
North Carolina; THE NORTH CAROLINA ) 

STATE BOARD OF ELECTIONS, ) 

an official agency of the State of North ) 

Carolina; EDWARD J. HIGH, in his ) 

RAL/56483/1 

Ya TAY 1 Io ERK 

U.S. DISTRICT COUR 
“EDT ND.CAR C. LA 

PLAINTIFES’ AND PLAINTIFF- 

INTERVENORS” MOTION FOR 

LEAVE TO FILE AN AMENDED 

COMPLAINT PURSUANT TO 

RULE 15(a) FED. R. CIV. P 

AND LOCAL RULE 4.00 

  

  

  

  

  

  

ATT. B 

 



  

official capacity as Chairman of the North 

Carolina State Board of Elections; JEAN H. 

NELSON, LARRY LEAKE, DOROTHY 

(DOT) PRESSER, and JUNE K. 

YOUNGBLOOD, in their official capacities 

as members of the North Carolina State 

Board of Elections, 

Defendants, 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 

RALPH GINGLES, VIRGINIA ) 
NEWELL, GEORGE SIMKINS, NA. ) 
SMITH, RON LEEPER, ALFRED ) 
SMALLWOOD, DR. OSCAR BLANKS, ) 
REV. DAVID MOORE, ROBERT L. ) 
DAVIS, CR. WARD, JERRY ADAMS, ) 
JAN VALDER, BERNARD OFFERMAN, ) 
JENNIFER McGOVERN, CHARLES ) 
LAMBETH, ELLEN EMERSON, ) 
LAVONIA ALLISON, GEORGE ) 
KNIGHT, LETO COPELEY, WOODY 
CONNETTE, ROBERTA WADDLE and ) 
WILLIAM M. HODGES, ) 

) 
) 
) 
) 

> 

Defendant- 

Intervenors. 

  

Pursuant to Rules 7 and 15 of the Federal Rules of Civil Procedure and Local Rule 4.00, 

plaintiffs and plaintiff-intervenors respectfully request that the court grant them leave to amend 

the complaint and accept for filing the Second Amended Complaint, attached hereto. This 

amended complaint is intended to remedy the arguable defects in the standing of cerfain present 

plaintiffs and plaintiff-intervenors. Accordingly, the amended complaint adds new plaintiffs and 

plaintiff-intervenors, who are registered voters residing in either the First or Twelfth Districts. 

The interests of justice and the policies underlying the Federal Rules of Civil Procedure compel 

granting leave to amend in these circumstances so that this case can proceed to a decision on the 

RAL/56483/1 -2- 

 



  

merits as to the First District and as to the remedy on the First and Twelfth Districts. 

Accordingly, this Court can and should grant this motion and permit the filing of the amended 

complaint. 

NATURE OF THE CASE 
  

This action involves a challenge to the constitutionality of the current North Carolina 

redistricting statute. Essentially, the plaintiffs have contended since filing their complaint on 

March 12, 1992, that the current North Carolina redistricting statute violates, inter alia, the Equal 

Protection Clause of the Fourteenth Amendment. On June 28, 1993, the Supreme Court held 

that such a claim stated a cause of action. Shaw v. Reno, 113 S. Ct. 2816 (1993) (Shaw I). After   

remand from Shaw I, this court granted leave to certain plaintiff-intervenors to intervene 

pursuant to Fed. R. Civ. P. 24(b). These plaintiff-intervenors were registered Republican voters 

residing in the Fourth, Sixth, Ninth, and Tenth Congressional Districts. They sought to represent 

the interests of Republicans. The court conditioned intervention on plaintiff-intervenors’ 

  

adoption of plaintiffs’ amended complaint as their own. See Shaw v. Hunt, No. 92-202-CIV-5- 

BR, Order (Nov. 3, 1993). The plaintiff-intervenors adopted plaintiffs’ amended complaint, 

engaged in discovery, and participated in the trial. 

On August 22, 1994, this court unanimously concluded that: 

The plaintiffs and their supporting intervenors have standing to 

maintain the Equal Protection claim remanded to this court by the 

Supreme Court, because they have established that they are 

registered to vote in North Carolina’s congressional elections and 

that the challenged redistricting plan assigns them to vote in 

particular electoral districts at least in part because of their race. 

RAL/56483/1 -3 i 

 



  

Shaw v. Hunt, 861 F. Supp. 408, 473 (E.D.N.C. 1994). Nevertheless, a two-judge majority 

rejected plaintiffs’ and plaintiff-intervenors’ Fourteenth Amendment Equal Protection challenge 

to North Carolina’s congressional redistricting plan. Id. at 475. 

On June 13, 1996, the Supreme Court reversed. Shaw v. Hunt, No. 94-923, slip op., 1996 
  

U.S. LEXIS 3880 (Shaw II). Initially, it held that only two plaintiffs -- Ruth Shaw and Melvin 

Shimm -- “live in District 12 and thus have standing to challenge that part of Chapter 7 which 

defines District 12.” Slip. op. at 4, 1996 U.S. LEXIS 3880, *9. “The remaining appellants do 

not reside in District 1, . . . and they have not provided specific evidence that they personally 

were assigned to their voting districts on the basis of race. Therefore, we conclude that only 

Shaw and Shimm have standing and only with respect to District 12.” Id. (footnote omitted). 

The Supreme Court went on to hold that the “North Carolina [reapportionment] plan violate[s] 

the Equal Protection Clause because the State’s reapportionment scheme is not narrowly tailored 

to serve a compelling state interest.” Id. at 1, 1996 U.S. LEXIS 3880, *5. 

The Supreme Court based its standing analysis on United States v. Hays, 115 S. Ct. 2431 
  

(1995), and Miller v. Johnson, 115 S. Ct. 2475 (1995). In Hays, the Court vacated a judgment 
  

striking down Louisiana’s congressional reapportionment plan as violative of the Equal 

Protection Clause of the Fourteenth Amendment. Specifically, the Court concluded that because 

none of the plaintiffs challenging the Louisiana congressional reapportionment plan lived in the 

allegedly racially gerrymandered district, they lacked standing and ordered that the complaint be 

dismissed. Hays, 115 S. Ct. at 2437 (“[T]he judgment of the District Court is vacated, and the 

case 1s remanded with instructions to dismiss the complaint.”). In Miller, the Court held that five 

registered voters who lived in the Georgia’s allegedly racially gerrymandered Eleventh 

RAL/56483/1  



Congressional District had standing. Miller, 115 S. Ct. at 2485. The Supreme Court then 

invalidated Georgia’s redistricting statute, including the Eleventh District, as violative of the 

Equal Protection Clause. Id. at 2490-94. 

hy THE COURT HAS DISCRETION TO GRANT THIS MOTION FOR LEAVE 
TO AMEND 
  

  

Granting leave to amend the complaint to cure the arguable standing defect 

identified by the Supreme Court as to certain plaintiffs and plaintiff-intervenors is fully 

consistent with the Federal Rules of Civil Procedure and existing precedent. Rule 15(a) provides 

that leave to amend pleadings “shall be freely given when justice so requires.” The Federal 

Rules “reject the approach that pleading is a game of skill in which one misstep by counsel may 

be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a 

proper decision on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962) (quotation omitted). 
  

In Foman, the Court allowed the plaintiff to amend the complaint and add an entirely new claim 

after dismissing the original complaint based upon the statute of frauds. Id. at 179. 

Most Circuits, including the Fourth Circuit, have drawn a distinction between 

dismissal of the complaint and dismissal of the action. See Domingo Sugar Corp. v. Sugar 
  

  

Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993); Whitaker v. City of Houston, 
  

963 F.2d 831, 832 (5th Cir. 1992); Czeremcha v. International Ass’n of Machinists and 
  

Aerospace Workers, 724 F.2d 1552, 1554 (11th Cir. 1984); Guse v. J.C. Penney Co., 570 F.2d 
  

  

679, 680 (7th Cir. 1978)(“the opinion in the present case only provided that upon remand the 

district court should dismiss the complaint and did not provide that the district court should 

  

dismiss the action”); Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976); Azar v. 

Conley, 480 F.2d 220, 223 (6th Cir. 1973); Ruby v. Secretary of the United States Navy, 365 
  

RAL/56483/1 -5 :  



  

F.2d 385, 387 (Sth Cir. 1966), cert. denied, 386 U.S. 1011 (1967). Moreover, the Supreme Court 
  

itself appears to draw such a distinction, disposing of cases rendered moot by intervening events- 

-cases by definition incapable of cure by amendment--with instructions to dismiss the case or the 

  

action. See e.g., Russoniello v. Olagues, 484 U.S. 806 (1987); United States v. Armour & Co, 
  

398 U.S. 268 (1970) (per curiam). 

Courts recognizing the distinction between dismissal of the complaint and 

dismissal of the action allow amendments to the complaint after the entire complaint has been 

dismissed, unless the reviewing court has given explicit instructions to the contrary. In 

Whitaker, for example, the Fifth Circuit held that “unless the dismissal order of the district court 

expressly states or clearly indicates the court’s intention to dismiss the action, a plaintiff may 

seek to amend under Fed. R. Civ. P. 15(a), even though the complaint has been dismissed.” 

Whitaker, 963 F.2d at 832. Moreover, other circuits have reached similar results. See Guse, 570   

F.2d at 680; Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986)(“Absent a mandate 
  

which explicitly directs to the contrary, a district court upon remand can permit the plaintiff to 

file additional pleadings, vary or expand the issues . . . .”)(quoting Rogers v. Hill, 289 U.S. 582, 
  

587-88 (1933)); Czeremcha, 724 F.2d at 1554 (distinguishing between dismissal of the 

complaint and of the action and finding “that only the latter constitutes a final order, unless the 

trial court has made clear in dismissing the complaint that the action could not be saved by 

amendment”). In fact, the Third Circuit has held that the district court may permit a plaintiff 

leave to amend its complaint, even after dismissal of the plaintiff's complaint for lack of 

standing. NAACP v. Town of Harrison, 907 F.2d 1408, 1416-17 (3d Cir. 1990). 
  

RAL/56483/1 i 6 = 

 



  

In the present case, the Supreme Court did not dismiss the complaint or the 

action. given that plaintiffs Ruth Shaw and Melvin Shimm, as residents of the Twelfth District, 

have standing to challenge Chapter 7. Moreover, the Supreme Court also included no 

instructions limiting this court’s options concerning the ability of the plaintiffs or plaintiff- 

intervenors to amend the complaint and to add plaintiffs and/or plaintiff-intervenors who are 

registered to vote in the First and Twelfth Districts. Therefore, this court has discretion to grant 

this motion for leave to amend the complaint. Indeed, upon remand in Hays, the three-judge 

court reached precisely this conclusion. See Hays v. Louisiana, No. 92-CV-1525, Order (W.D. 
  

La. July 31, 1995) (granting plaintiffs’ motion to amend complaint to add plaintiffs following 

remand from the Supreme Court) (copy attached as Exhibit 1). Similarly, upon remand in 

Miller, the three-judge court permitted the plaintiffs to amend their complaint to add plaintiffs 

from Georgia’s Second Congressional District and to add a constitutional challenge to that 

district. See Johnson v. Miller, No. 94-CV-8, Order (S.D. Ga. Aug. 22, 1995) (copy attached as   

Exhibit 2). 

II. THE COURT SHOULD GRANT THE MOTION FOR LEAVE TO AMEND 
  

The grant or denial of an opportunity to amend is within the discretion of the 

court. See Foman, 371 U.S. at 182. “[L]eave shall be freely given when justice so requires.” 

Fed. R. Civ. P. 15(a). The Supreme Court has emphasized that “this mandate is to be heeded.” 

Foman, 371 U.S. at 182. Moreover, the Federal Rules of Civil Procedure favor resolving cases 

on the merits and freely granting leave to amend furthers this important policy. Island Creek 
  

Coal Co. v. Lake Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987); see Medigen of Kentucky. Inc. 
  

  

  v. Public Serv. Comm’n, 985 F.2d 164, 167-68 (4th Cir. 1993) (“the federal rules strongly favor 

RAL/56483/1 -7- 

 



  

granting leave to amend”). Leave to amend should be denied only when (1) the amendment 

would be prejudicial to the opposing party, (2) there has been bad faith on the part of the moving 

party, or (3) the amendment would be futile. Island Creek Coal Co., 832 F.2d at 279; Johnson v. 
  

Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). None of these reasons justify failing to 
  

grant the motion to amend. 

First, the amendment will not unduly prejudice the opposition. The existing 

complaint, as written, has given the defendants adequate notice of the constitutional challenge to 

the North Carolina reapportionment plan, including the First District and the Twelfth District. 

The proposed amendments do not alter these facets of the case. Amendment of the complaint 

simply will allow plaintiff-intervenors to participate in the remedy stage concerning District 12, 

and allow the plaintiffs and plaintiff-intervenors to receive a judgment on the merits as to 

District 1 and participate in the remedy stage as to District 1. 

Second, neither plaintiffs nor plaintiff-intervenors have acted in bad faith either in 

the prosecution of this action or the presentation of this motion for leave to amend. Moreover, 

this court, the plaintiffs, and the plaintiff-intervenors have long-believed that the existing 

plaintiffs and plaintiff-intervenors had standing to challenge the North Carolina redistricting 

statute. See Shaw, 861 F. Supp. at 473. Only after this case had been appealed to the Supreme 

  

Court and after the Supreme Court decided United States v. Hays, supra, in June 1995 did any 

question arise as to standing. Given that this court’s decision was on appeal to the Supreme 

Court at that time, plaintiffs and plaintiff-intervenors did not take steps to resolve this standing 

issue until the Court decided Shaw II. Now that the Court has decided Shaw II, this motion has 

been filed. 

RAL/56483/1 -8- 

 



  

Finally, the proposed amendment is not futile. As the Supreme Court’s decisions 

in Miller, Hays, and Shaw II indicate, the arguable standing deficiencies of certain plaintiffs and 
  

plaintiff-intervenors are easily cured by adding plaintiffs and plaintiff-intervenors who reside in 

the racially gerrymandered districts -- Districts 1 and 12. The attached amended complaint 

therefore includes plaintiffs and plaintiff-intervenors who, as registered voters in District 1 and 

12, unquestionably have standing under Miller, Hays, and Shaw II. 
  

Even if there were some grounds upon which to deny leave, “the court should 

consider prejudice to the movant, as well as judicial economy, in determining whether justice 

  

requires granting leave.” Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985). In this case, 

both of these concerns militate in favor of granting leave to amend. First, refusing leave to 

amend and requiring the parties to proceed on a new original complaint will delay plaintiffs’ and 

plaintiff-intervenors’ attempts to vindicate their constitutional rights. Second, in view of the 

Supreme Court’s decision in Shaw II, this court now faces the issue of the remedy. Given that 

this court and the parties already have expended considerable resources litigating this case, while 

bso intimately familiar with the factual and legal issues presented, it is hardly appropriate 

or economical use of judicial resources for this court (1) to terminate one aspect of this litigation 

(1.e., the challenge to the First District) only to have these parties and issues reappear via a new 

action or (2) to wi certain plaintiffs and the plaintiff-intervenors from continuing to participate 

in this case as it moves to the remedial phase. Accordingly, judicial economy warrants granting 

leave in order that this case can be definitively resolved as quickly as possible. See Hays, No. 

92-CV-1522, Order (W.D. La. July 31, 1995) (granting plaintiffs’ motion to amend complaint to 

add new plaintiffs following remand from the Supreme Court); Miller, No. 94-CV-8, Order (S.D. 

RAL/56483/1 -O- 

 



Ga. Aug 22, 1995) (granting plaintiffs’ motion to amend complaint to add new plaintiffs and a 

new claim challenging Georgia’s Second Congressional District following remand from the 

Supreme Court’s invalidation of Georgia’s Eleventh Congressional District). 

CONCLUSION 
  

The Supreme Court has held that the North Carolina congressional redistricting statute is 

unconstitutional. That ruling does not end the action. This court now will grapple with the 

remedy and with the ongoing Equal Protection challenge to the First District. Rule 15(a) directs 

liberal allowance of leave to amend. No justification exists for refusing to grant leave to amend 

to the plaintiffs and plaintiff-intervenors. Moreover, considerations of judicial economy and the 

actions of the Hays and Miller courts on remand weigh in favor of this court granting leave to 

amend. Accordingly, this court should grant the motion for leave to amend the complaint. 

RAL/56483/1  



  
RAL/56483/1 

Ar 
This the 4 day of July, 1996. 

EVERETT & EVERETT 

wi of J 
  

Robinson O. Everett 

Pro Se and as Attorneys for the Plaintiffs 

301 West Main Street 

Post Office Box 586 

Durham, North Carolina 27702 

MAUPIN TAYLOR ELLIS & ADAMS, P.A. 

BY: 

11. 

er 

Wr na 
  

Thomas A. Farr 

James C. Dever, III 

Attorneys for Plaintiff-Intervenors 

3200 Beechleaf Court, Suite 500 

Raleigh, North Carolina 27604-1064 

Telephone: (919) 981-4000 

 



  

CERTIFICATE OF SERVICE 
  

It 1s hereby certified that on this date the foregoing Motion for Leave to File an Amended 

Complaint Pursuant to Rule 15(a), Fed. R. Civ. P. and Local Rule 4.00 was served upon all 

parties of record to this cause by mailing a copy to the party’s attorney of record in accordance 

with the Rules of Civil Procedure. 

This the 4" day of July, 1996. 

MAUPIN TAYLOR ELLIS & ADAMS, PA. 

Cy Se 
BY: « AT ( Ct 

Thomas A. Farr 

3200 Beechleaf Court, Suite 500 

Raleigh, North Carolina 27604-1064 
Telephone: (919) 981-4000 

Facsimile: (919) 981-4300 

  

SERVED: 

Michael S. Easley 

Attorney General 

Edwin N. Speas, Jr. 

Senior Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

Anita Hodgkiss, Esq. 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

Suite 730, 700 East Stonewall Street 

Charlotte, North Carolina 28202 

RAL/52047/1 

 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, MELVIN G. SHIMM, 
ROBINSON O. EVERETT, JAMES M. 
EVERETT, DOROTHY G. BULLOCK, 
MARTIN CROMARTIE, THOMAS 
CHANDLER MUSE, and GLENNES 
DODGE WEEKS, 

Plaintiffs, 

JAMES ARTHUR “ART” P OPE 
BETTY S. JUSTICE, DORIS LIL, JOYCE 
LAWING, NAT SWANSON, RICK 
W OODRUF F, J. RALPH HIXSON, 
AUDREY McB ANE, SIM DELAPP, IR. 
RICHARD SAHLIE, HOWARD B. 
SMITH, HM. “TED” TYLER, FERRELL 
L. BLOUNT, III, H. HOWARD 
DANIELEY, ANTHONY G. POSE XY, 
and RACHEL NANCE RUMLEY 

SECOND AMENDED COMPLAINT 
FOR FOR PRELIMINARY AND 
PERMANENT INJUNCTION 

YENOTIS 3, 

Y. 

GOVERNOR JAMES B. HUNT, in his 
on al ay as Governor of the State of 
North Carolina; DENNIS A. WICKER, in 
’ us official capacity as Lieutenant Governor 
of the State of North Carolina and President 
of the Senate; HAROLD J. BRUB, AKER, 
in his official capacity as S peaker of the 
North Carolina House of Re presentatives; 
J Al NICE FAULKNER, in her official 
capacity as Secretary of the State of 
North Carolina; THE NORTH CAROLINA 
STATE BOARD OF ELECTIONS. 
an official agency of the State of North 
Carolina; EDWARD J. HIGH, in his 
official capacity as Chairman of the North 
Carolina State Board of Elections; JEAN H. 
NELSON, LARRY LEAKE, DOROTHY 
(DOT) PRESSER, and JUNE K. 

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RAL/56543/1  



YOUNGBLOOD, in their official capacities 
as members of the North Carolina State 
Board of Elections, 

Defendants, 

RALPH GINGLES, VIRGINIA 
NEWELL, GEORGE SIMKIN S, NA. 
SMITH, RON LEEPER, ALFRED 
SMALLWOOD, DR. OSCAR BLANKS, 
REV. DAVID MOORE, ROBERT L. 

WARD, JERRY ADAMS, 
JAN VALDER, BERNARD OFFERMAN, 
JENNIFER McGOVERN, CHARLES 
LAMBETH, ELLEN EMERS ON, 
LAVONIA ALLISON, GEORGE 
KNIGHT, LETO COPELEY, WOODY 
CONNETTE, ROBERTA WADDLE and 
WILLIAM M. HODGES, 

Defendant- 

Intervenors. 

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Plaintiffs and plaintiff-intervenors file this Second Amended Complaint in the above- 

captioned action for declaratory and preliminary and permanent injunctive relief against the 

defendants to challenge and prevent further implementation of the State of North Carolina’s 

redistricting statute. This action is based on the claim originally filed by the plaintiffs on March 

12, 1992, upheld by the Supreme Court in Shaw v. Reng, 1138.Ct 2816 (1993), and in Shaw v, 

Hunt, 1996 U.S. LEXIS 3880 (U.S. June, 13, 1996). 

JURISDICTION AND VENUE 
          

1. This action arises under Article I, §§ 2 and 4 and the Fourteenth and Fifteenth 

Amendments of the Constitution of the United States, 42 U.S.C. §§ 1981, 1983, and 1988, and 2 

US.C'32 

RAL/56548/1  



This court has original jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 

1343(3) and (4), and 2284. 

Venue is proper in this district under 28 U.S.C. § 1391(b). 

THREE-JUDGE DISTRICT COURT 
  

A three-judge district court has been properly convened in this action under 28 

U.S.C. § 2284 because this action challenges the constitutionality of the statewide apportionment 

of congressional districts for the State of North Carolina. 

Plaintiffs and plaintiff-intervenors allege that the North Carolina legislature 

purposely and intentionally classified and discriminated among the voters of North Carolina on 

the basis of race and in doing so violated the rights of the plaintiffs and plaintiff-intervenors 

guaranteed by the Fourteenth and Fifteenth Amendments. The defendants have enforced this 

unconstitutional law against the plaintiffs and plaintiff-intervenors and all of the citizens of 

North Carolina. 

  
The Supreme Court concluded in Shaw v. Hunt, 1996 U.S. LEXIS 3880 (U.S. 

June 13, 1996), that the North Carolina redistricting statute, and in particular the Twelfth 

District, is constitutionally invalid. This action seeks a declaration that the First District is al 0 

constitutionally invalid. This action also ons a preliminary and permanent injunction against 

enforcement of the redistricting statute for the 1996 election, and other equitable relief as the 

court deems appropriate. 

PARTIES 

Plaintiff Ruth O. Shaw is a registered voter and a resident of the Twelfth 

Congressional District of the State of North Carolina. She is a resident of Durham County. The 

North Carolina redistricting statute harms Ms. Shaw because it classifies her and other registered 

RAL/56548/1 : -3-  



voters in District Twelve on the basis of race, and she has been classified in, or excluded from, 

particular congressional districts on the basis of race. 

8. Plaintiff Melvin G. Shimm is a registered voter and a resident of the Twelfth 

Congressional District of the State of North Carolina. He is a resident of Durham County. The 

North Carolina redistricting statute harms Mr. Shimm because it classifies him and other 

registered voters in District Twelve on the basis of race, and he has been classified in, or 

excluded from, particular congressional districts on the basis of race. 

8, Plaintiff Robinson O. Everett is a registered voter and a resident of the Second 

Congressional District of the State of North Carolina. He is a resident of Durham County. The 

North Carolina redistricting statute harms Mr. Everett because it classifies him and other 

registered voters in District Two on the basis of race, and he has been classified in, or excluded 

from, particular congressional districts on the basis of race. 

10. Dorothy G. Bullock is a registered voter and a resident of the Second 

Congressional District of the State of North Carolina. She is a resident of Durham County. The 

North Carolina redistricting statute harms Ms. Bullock because it classifies her and other 

registered voters in District Two on the basis of race, and she has been classified in, or excluded 

from, particular congressional districts on the basis of race. 

Plaintiff James M. Everett registered to vote after the 1992 redistricting statute 

had been adopted in North Carolina and is « urrently a registered voter in the Second 

Congressional District. He is a resident of Durham County. The North Carolina redistricting 

statute harms Mr. Everett because it classifies him and other registered voters in District Two on 

the basis of race. 

RAL/56548/1  



Plaintiff-intervenor James Arthur “Art” Pope was and is a registered voter and 

resident of Wake County and a member of the Republican Party. As a result of the 1992 

redistricting statute, Mr. Pope was placed in the Fourth Congressional District. Plaintiff- 

intervenor Betty S. Justice was and is a resident of Rutherford County and a member of the 

Republican Party. As a result of the 1992 redistricting statute, Ms. Justice was placed in the 

Tenth Congressional District. The North Carolina redistricting statute harms Mr. Pope and Ms. 

Justice because it classifies them and other registered voters on the basis of race, and they have 

been included in, or excluded from, particular coteTosdon districts on the basis of race. 

13. Plaintiff-intervenor Doris Lil was and is a resident of Lincoln County and a 

member of the Republican party. As a result of the 1992 redistricting, Ms. Lil now resides in the 

Tenth Congressional District. Plaintiff-intervenor Joyce Lawing was and is a resident of 

Caldwell County and a member of the Republican party. As a result of the 1992 redistricting, 

Ms. Lawing now resides in the Tenth Congressional District. The North Carolina redistricting 

statute harms Ms. Lil and Ms. Lawing because it classifies them and other registered voters on 

the basis of race, and they have been included in, or excluded from, particular congressional 

districts on the basis of race, 

Plaintiff-intervenor Nat Swanson was and is a resident of Forsyth County and a 

member of the Republican party. As a result of the 1992 redistricting, Mr. Swanson now resides 

in the Tenth Congressional District. Plaintiff-intervenor Rick Woodruff was and is a resident of 

Wilkes County and a member of the Republican party. As a result of the 1992 redistricting, Mr. 

Woodruff now resides in the Tenth Congressional District. The North Carolina redistricting 

statute harms Mr. Swanson and Mr. Woodruff because it classifies them and other registered 

RAL/56548/1  



  

voters on the basis of race, and they have been included in, or excluded from, particular 

congressional districts on the basis of race. 

15. Plamntiff-intervenor J. Ralph Hixson was and is a resident of Guilford County and 

a member of the Republican party. As a result of the 1992 redistricting, Mr. Hixson now resides 

in the Sixth Congressional District. Plaintiff-intervenor Audrey McBane was and is a resident of 

Alamance County and a member of the Republican party. As a result of the 1992 redistricting, 

Ms. McBane now resides in the Sixth Congressional District. The North Carolina redistricting 

statute harms Mr. Hixson and Ms. McBane because it classifies them and other registered voters 

on the basis of race, and they have been included in, or excluded from, particular congressional 

districts on the basis of race. 

16. Plaintiff-intervenor Sim Delapp, Jr. was and is a resident of Davidson County and 

a member of the Republican party. As a result of the 1992 redistricting, Mr. Delapp now resides 

in the Sixth Congressional District. Plaintiff-intervenor Richard Sahlie was and 1s a resident of 

Mecklenburg County and a member of the Republican party. As a result of the 1992 

redistricting, Mr. Sahlie now resides in the Ninth Congressional District. The North Carolina 

redistricting statute harms Mr. Delapp and Mr. Sahlie because it classifies them and other 

registered voters on the basis of race, and they have been included in, or excluded from, 

particular congressional districts on the basis of race. 

1 7 Plaintiff-intervenor Howard B. Smith.is a registered voter, a Republican, and a 

resident of the First Congressional District of the State of North Carolina. He is a resident of 

Warren County. Prior to the 1992 congressional redistricting, Mr. Smith was registered to vote 

in the Second Congressional District. Mr. Smith is also the Republican Party chairman of the 

First District. The North Carolina redistricting statute harms Mr. Smith because it classifies him 

RAL/56548/1 
-6 # 

 



and other registered voters in District 1 on the basis of race, and he has been included in, or 

excluded from, particular congressional districts on the basis of race. 

18. Plaintiff-intervenor HM. “Ted” Tyler is a registered voter, a resident of 

Northhampton County, and a member of the Republican Party. Prior to the 1992 congressional 

redistricting, Mr. Tyler was registered to vote in the First Congressional District. As a result of 

the 1992 redistricting, Mr. Tyler now resides in the First Congressional District. Mr. Tyler is the 

current nominee for the Republican Party for the House of Representatives from the First 

District. Mr. Tyler is injured because he and other North Carolina voters, including voters in 

District 1, have been classified by race and have been included in. or excluded from, particular 

congressional districts on the basis of race. 

19. Plaintiff-intervenor Ferrell I. Blount, IT Is a registered voter, a resident of Pitt 

County, and a member of the Republican Party. Prior to the 1992 congressional redistricting, 

Mr. Blount was a registered voter 1n the First Congressional District. As a result of the 1992 

redistricting, Mr. Blount now resides in the First Congressional District. Mr. Blount is injured 

because he and other North Carolina voters, including voters in District 1, have been classified 

by race and have been included in, or excluded from, particular congressional districts on the 

basis of race. 

20, Plaintiff-intervenor H. Howard Danieley is a registered voter, a resident of 

Alamance County, and a member of the Republican Party. Prior to the 1992 ¢ongressional 

redistricting, Mr. Danieley was registered to vote in the Sixth Congressional District. As a result 

of the 1992 redistricting, Mr. Danieley now resides in the Twelfth Congressional District. Mr. 

Danieley is injured because he and other North Carolina voters, including voters in District 12, 

RAL/56548/1  



  

have been classified by race and have been included in, or excluded from, particular 

congressional districts on the basis of race. 

21. Plaintiff-intervenor Anthony G. Posey is a registered voter, a resident of Guilford 

County, and a member of the Republican Party. Prior to the 1992 congressional redistricting, 

Mr. Posey was registered to vote in the Sixth Congressional District. As a result of the 1992 

redistricting, Mr. Posey now resides in the Twelfth Congressional District. Mr. Posey is injured 

because he and other North Carolina voters, including voters in District 12, have been classified 

by race and have been included in, or excluded from, particular congressional tition on the 

basis of race. 

22. Plaintiff-intervenor Rachel Nance Rumley is a registered voter, a resident of 

Guilford County, and a member of the Republican Party. Prior to the 1992 congressional 

redistricting, Ms. Rumley was registered to vote in the Sixth Congressional District. As a result 

of the 1992 redistricting, Ms. Rumley now resides in the Twelfth Congressional District. Ms. 

Rumley 1s injured because she and other North Carolina voters, including voters in District 12, 

have been classified by race and have been included In, Or excluded from, particular 

congressional districts on the basis of race. 

23. As part of the manipulation of 229,000 census blocks, each plaintiff was assigned 

to his or her current congressional district and personally subjected to a racial classification. 

Each was personally injured by being placed in a district which was dysfunctional Seganse it was 

not drawn according to traditional and accepted race-neutral principles such as geographic 

compactness, contiguousness, and communities of interest. Such principles facilitate political 

interaction and political representation. 

RAL/56548/1 -8- 

 



  

~ 

24. Defendant James B. Hunt is the Governor in and for the State of North Carolina 

and, in such capacity, he is the Chief Executive Officer of the State charged with the duty of 

enforcing compliance with State legislation under Article II, Section 5(4) of the Constitution of 

North Carolina. Moreover, it is the Governor's duty to issue a commission to a person elected to 

the United States House of Representatives upon that person’s production to the Governor a 

certificate of his election from the Secretary of State, pursuant to N.C. Gen. Stat. § 163-194. He 

is sued in his official capacity. 

25. Defendant Dennis A. Wicker is the Lieutenant Governor of North Carolina and, 

as part of his official duties, presides over the North Carolina Senate and certifies certain actions 

of the Senate. He is sued in his official capacity. 

26. Defendant Harold J. Brubaker, is the Speaker of the North Carolina House of 

Representatives. In this capacity he presides over that body and certifies certain actions taken by 

the House of Representatives. He is sued in his official capacity. 

27. Defendant Janice Faulkner, Secretary of State of North Carolina, is charged with 

preparing a certificate of election for each person elected after the Board of Elections certifies 

the results to her, pursuant to N.C. Gen. Stat. § 163-193. She is sued in her official capacity. 

28. Defendant North Carolina State Board of Elections is an official agency of the 

State of North Carolina and has general supervisory authority over the primaries and elections in 

North Carolina, including elections for the U.S. House of Representatives, with the authority to 

promulgate rules and regulations for the conduct of elections, pursuant to N.C. Gen. Stat. § 163- 

29. Defendants Bivard J. High, Jean H. Nelson, Larry Leake, Dorothy (Dot) Presser, 

and Jean K. Youngblood are members of the North Carolina Board of Elections. Defendant 

RAL/56548/1 
-0 T 

 



  

Edward J. High is the Chairman of the Board. All of said defendants are charged with exercising 

the powers and duties of the State Board of Elections pursuant to N.C. Gen. Stat. § 163-22. 

These defendants are all sued in their official capacity. 

30. Pursuant to this court’s order of September 7, 1993, Ralph Gingles, Virginia 

Newell, George Simkins, N.A. Smith, Ron Leeper, Alfred Smallwood, Dr. Oscar Blanks, Rev. 

David Moore, Robert L. Davis, C.R. Ward, Jerry Adams, Jan Valder, Bernard Offerman, 

Jennifer McGovern, Charles Lambeth, Ellen Emerson, Lavonia Allison, George Knight, Leto 

Copeley, Woody Connetts, Roberta Waddle, and William M. Hodges were permitted to 

participate in this action as defendant-intervenors. 

1992 CONGRESSIONAL REDISTRICTING 
  

3}. Pursuant to the results of the 1980 decennial census, the State of North Carolina 

was entitled to eleven members in the United States House of Representatives. Because of the 

substantial population increase recorded by the 1990 decennial census, North Carolina is now 

entitled to an additional member in the United States House of Representatives. Thus, the size of 

the State’s Congressional delegation has increased from eleven to twelve members pursuant to 2 

LES.C. 82 

32. The increase in the size of the State’s population and Congressional delegation 

required the State of North Carolina to redistrict the State’s Congressional districts, so that each 

of the twelve Congressional Districts would have equality in population. To this end on July 9, 

1991, the General Assembly enacted redistricting legislation known as Chapter 601 of the North 

Carolina Sessions Laws of 1991 (“Chapter 601"). 

33. Because portions of the State of North Carolina are subject to the pre-clearance 

procedures of § 5 of the Voting Rights Act, Chapter 601 could not take effect and was 

RAL/56548/1 e 1 0- 

 



unenforceable, unless and until the Attorney General of the United States pre-cleared Chapter 

601 or failed to object to the Chapter 601 within a prescribed time after its submission to him. 

34. The State of North Carolina submitted Chapter 601 to the Attorney General for 

pre-clearance pursuant to the Voting Rights Act. 

33. On December 18, 1991, the Attorney General, acting through his subordinate in 

the United States Department of Justice, objected to Chapter 601 and refused pre-clearance. The 

basis for denying pre-clearance was that North Carolina had failed ro create two congressional 

districts containing a majority of minorities and voters in order 0 better assure that in each 

district an African-American person would be elected to Congress. By denying pre-clearance on 

this basis, the Attorney General exceeded any authority he was entitled to exercise under any 

constitutionally proper interpretation of the Voting Rights Act, as has now been decided by the 

Supreme Court in Miller v. Johnson, 115 S. Ct. 2475 (1995), and Shaw v. Hunt, supra.   

  

36. Because of the objection that had been made by the Attorney General, the 

General Assembly of North Carolina, convened in special session and enacted Chapter 7 (1991 

Extra Session) (hereinafter “Chapter 7"), which provides for the redistricting of congressional 

districts and an increase from eleven to twelve congressional districts. 

37. In enacting Chapter 7, race was the predominant motive of the General Assembly 

in placing a significant number of voters within or without particular districts, as was reflected in 

its own record of proceedings and otherwise. Indeed, the U.S. Supreme Court reat has 

concluded that race was the predominant factor motivating the General Assembly’s decision to 

place a significant number of voters within or without the Twelfth District. See Shaw v. Hunt, 
  

supra. Notably, the drafters of the plan relied upon computer technology to group 229,000 

census blocks in accord with race, so that census blocks with a predominately black population 

RAL/56548/1 
-1 1-  



    

we og 
would be clustered together and these clusters would be connected with strings of census blocks 

with a predominately white population. Thus, the drafters could create an African-American 

majority in two districts, and the election of an African-American representative could be 

assured in these districts. No socioeconomic data other than race and age of population was 

available in the computer base for use in drawing the districts. 

38. In Chapter 601, the First Congressional District had been drawn with the 

predominant and overriding purpose of creating a majority-black district and racially neutral and 

traditional redistricting principles were subordinated to this purpose and motive. In Chapter 7, 

the same purpose existed but the First District was even more “bizarre” and was formed with an 

ever greater disregard of neutral and traditional redistricting principles. It contained “double 

crossovers”, reached from the Virginia line almost to South Carolina, split many counties, cities 

and towns, and precincts, and used corridors of white “filler people” to connect concentrations of 

African-Americans in the center of Fayetteville, Wilmington, Greenville and other towns with 

predominately African-American rural areas. 

39. Chapter 7 was submitted to the Attorney General for pre-clearance. The Attorney 

General entered no objection to Chapter 7. 

40. Subsequently, on February 28, 1992, an action was filed against State officials by 

  

various plaintiffs objecting to Chapter 7 on several grounds. (See Pope et al. v. Blue et al. Civil 

Action No. 3:92CV71-P, United States District Court, Western District of North Carolina, 

Charlotte Division.) Those grounds are distinct from the basis for this action. The present 

plaintiffs in no way adopt or incorporate the contentions made by the plaintiffs in that action, 

which was dismissed. 

RAL/56548/1 oe 1 2- 

 



    

oh " 
41. Initially, the three-judge district court granted defendants’ motion to dismiss 

plaintiffs’ complaint. See Shaw v. Barr, 808 F. Supp. 461 (ED.N.C. 1992). The plaintiffs   

appealed to the Supreme Court. 

42. On June 28, 1993, the Supreme Court reversed the district court, and remanded 

  

for further proceedings in light of its decision. See Shaw v. Reno, 113 S. Ct. 2816 (1993). 

43. On November 3, 1993, the court granted in part and denied in part plaintiff- 

intervenors’ motion to intervene pursuant, inter alia, to Rule 24(b) of the Federal Rules of Civil 

Procedure. The court granted the motion of those Benbbienn applicants who were registered 

voters of the State of North Carolina for permission to intervene. The court denied the motion of 

those Republican applicants who were not registered voters of the State of North Carolina for 

permission to intervene pursuant to Fed. R. Civ. P. 24(b), 1.e., the Republican Party of North 

Carolina and Jack Hawke, in his official capacity as the Chairman of the Party. 

44. Discovery commenced and a trial was held. 

45. On August 1, 1994, a three-judge district court entered its judgment upholding the 

North Carolina redistricting statute and rejecting plaintiff's and plaintiff-intervenors’ challenge 

to Chapter 7 pursuant to the Equal Protection Clause of the Fourteenth Amendment. See Shaw 

46. The plaintiffs and plaintiff-intervenors filed timely appeals to the United States 

Supreme Court. On June 13, 1996, the United States Supreme Court held “that the North 

Carolina [congressional districting] plan . . . violate[s] the Equal Protection Clause because the 

State’s reapportionment scheme is not narrowly tailored to serve a compelling state interest.” 

Shaw v. Hunt, slip op. at 1. 

RAL/56548/1 = 1 3 - 

 



    

wh oh 
47. In reaching this conclusion, the court held that race was the predominant factor 

motivating the legislature’s decision to place a significant number of voters within or without 

District 12. See slip op. at 5-6. The Supreme Court noted that the district court had direct 

evidence of legislature’s objective as well as indirect evidence based upon the district’s shape 

and demographics. “Here, as in Miller, we fail to see how the district court could have reached 

any conclusion other than that race was the predominant factor in drawing [the challenged 

district].” See slip op. at 6 (quotations omitted). Accordingly, North Carolina, “therefore, must 

show not only that its redistricting plan was in pursuit of a compelling State interest, but also that 

its districting legislation is narrowly tailored to achieve [that] compelling interest.” Slip op. at 8. 

(quotations omitted). 

48. The Supreme Court then assessed and rejected defendants’ claims that three 

separate compelling state interests justified District 12: to eradicate the effects of past and 

present discrimination; to comply with Section 5 of the Voting Rights Act; and to comply with 

Section 2 of that Act. 

COUNT I 

49. The preceding allegations of this complaint are incorporated by reference and 

realleged. 

50. The plaintiffs and plaintiff-intervenors, as citizens and residents of the State of 

North Carolina, are part of its “people”; and as registered voters in the State, they have, under 

Article I, § 2 of the Constitution, a right to choose members of Congress. Under Article 1, § 4, 

this right is subject to control by Congress and the federal government only to a limited extent 

and not in the manner in which the Attorney General has interpreted the Voting Rights Act. 

RAL/S6548/1 ld 

 



  

"» wo 
SL. The right of the plaintiffs and plaintiff-intervenors to vote for members of the 

  

House of Representatives is a right for which the plaintiffs and plaintiff-intervenors are entitled 

to the “equal protection of the laws”, with respect to any action taken by the State of North 

Carolina. Moreover, this right to vote for members of the House of Representatives of the 

United States is a “privilege” of citizens of the United States within the meaning of the 

Fourteenth Amendment and is protected by that amendment from being abridged by the State of 

North Carolina. The right of the plaintiffs and plaintiff-intervenors as citizens of the United 

States % vote for members of the House of Representatives 5 also protected by the Fifteenth 

Amendment against being “abridged” by the State of North Carolina on account of the race or 

color of the plaintiffs and plaintiff-intervenors. 

52. Any action by officers of the State of North Carolina which discriminates on the 

basis of race or color violates this right of plaintiffs and plaintiff-intervenors to vote for members 

of Congress, denies the plaintiffs and plaintiff-intervenors and all other voters equal protection of 

the laws, and abridges their right to vote. 

53. By submitting to the unconstitutional requirements imposed by the Attorney 

General, and acquiescing in the creation of race-based congressional districts intended to 

concentrate voters of a particular race and to elect members of Congress of a particular race, the 

General Assembly of North Carolina, in 1992, became a necessary participant in creating a 

racially discriminatory voting process for the election of members of Congress from North 

Carolina. The present defendants, as part of their official duties, implement and execute this 

unconstitutional action of the General Assembly. 

54. By their acts done in submission to the requirements imposed by the Attorney 

General, the defendants have heretofore violated, and, unless preliminarily and permanently 

RAL/56548/1 -1 5- 

 



  

" 4 
enjoined, will in the immediate future inevitably violate rights conferred upon these plaintiffs 

  

and plaintiff-intervenors by Article I, §§ 2 and 4, and by the Fourteenth and Fifteenth 

Amendments of the United States Constitution. 

55. The decision by the General Assembly to create two congressional districts in 

which a majority of black voters was concentrated arbitrarily -- without regard to any other 

considerations, such as geographical compactness, contiguousness, geographical boundaries, or 

political subdivisions -- was a decision made with full awareness of the intended consequences 

and effects and was made with the purpose to create congressional districts along ay lines and 

to ensure that black members of Congress would be elected from two congressional districts in 

which a majority of black voters were intentionally and purposefully concentrated on the basis of 

census date reflecting the racial composition of North Carolina’s population. Plaintiffs and 

plaintiff-intervenors allege that, for purposes of the Fourteenth and Fifteenth Amendments to the 

United States Constitution, this intent and purpose on the part of the members of the General 

Assembly in North Carolina was and is a racially discriminatory intent and purpose. The 

overriding and predominantly racial motive requires strict scrutiny which these districts cannot 

survive because there was no compelling State interest in creating them and they are not 

narrowly tailored to achieve a compelling state interest. Plaintiffs and plaintiff-intervenors 

further allege that Chapter 7 -- which creates bizarre, non-contiguous, and extraordinarily 

dispersed districts, such as the First and Twelfth Districts, and which was enacted as a result of 

the conscious decision by members of the General Assembly which the various State defendants 

are now continuing to implement -- is the result of an unconstitutional and racially 

discriminatory intent and purpose. 

RAL/56548/1 2 1 O- 

 



    

wh o® 
56. The plaintiffs and plaintiff-intervenors will suffer irreparable injury unless the 

defendants are preliminarily and permanently enjoined from conducting elections according to 

the district boundaries created by Chapter 7. 

57. The plaintiffs and plaintiff-intervenors personally have been harmed by the 

enactment and enforcement of Chapter 7. 

58. The injuries were caused by the enactment and enforcement of this 

unconstitutional legislation. Their injuries will be redressed by favorable decision from this 

court preliminarily and permanently enjoining the enforcement of Chapter 7. 

WHEREFORE, plaintiffs and plaintiff-intervenors respectfully pray: 

k That the court acknowledge and declare that Chapter 7 violates the Constitution 

and statutes of the United States and is now prospectively null and void and of no further force 

and effect insofar as it purports to establish congressional districts for the State of North 

Carolina; 

2. That the court enter a declaratory judgment that the boundaries of District 1 of 

Chapter 7 reflect a racial gerrymander in violation of the Fourteenth and Fifteenth Amendments 

to the United States Constitution; 

~ 

3. That the court preliminarily and permanently enjoin the defendant Secretary of 

State and other defendants from ordering or conducting any further electoral processes under 

Chapter 7, from certifying the results of any such processes or elections, and from king any 

other steps with respect to the election of members of the United States House of 

Representatives, until there has been further redistricting of congressional districts which comply 

with the Constitution and statutes of the United States; 

RAL/56548/1 
1 7- 

 



   we o® 
4, That the court enter an order extending the deadline for filing certificates of 

  

announcement of candidacy for election to the United States House of Representatives from the 

State of North Carolina to such time as is necessary to effect relief; 

5. The court order appropriate remedies, which could include solicitation or review 

of proposed legislative redistricting plans from interested parties, promulgation of new 

legislative redistricting plans by appointment of special masters, or such other means that the 

court deems appropriate; 

6. That the court retoth urladiotion of this action until such time as the congressional 

redistricting plan is promulgated in accordance with the constitutional and statutory 

requirements; 

7 That the court award plaintiffs and plaintiff-intervenors their costs and reasonable 

attorneys fees; and 

8. That the court enter such other and further relief as may, to the court, seem just 

and proper. 

RAL/S56548/1 2 

 



  
RAL/56548/1 

pl o® 

  

ry YY 

Respectfully submitted, this the 1 day of July, 1996. 

EVERETT & EVERETT 

BY: iB (ne he 
  

Robinson O. Everett 

N.C. State Bar No. 1385 

Pro Se and Attorney for Plaintiffs 
Suite 300 First Union National 

Bank Building 

Post Office Box 586 

Durham, North Carolina 27702 

(919) 682-5961 

MAUPIN TAYLOR ELLIS & ADAMS, PA. 

BY: 

10. 

£7 : va 

Ny n Ar” A 

  

Thomas A. Farr 

N.C. State Bar No. 10871 

James C. Dever, III 

N.C. State Bar No. 14455 

Attorneys for Plaintiff-Intervenors 

3200 Beechleaf Court, Suite 500 
Raleigh, North Carolina 27604-1064 
Telephone: (919) 981-4000 

Facsimile (919) 981-4300 

 



    

oe 

    

ah 
CERTIFICATE OF SERVICE 
  

It 1s hereby certified that on this date the foregoing Second Amended Complaint For 

Preliminary and Permanent Injunction was served upon all parties of record to this cause by 

mailing a copy to the party’s attorney of record in accordance with the Rules of Civil Procedure. 

This the 17 day of July, 1996. 

SERVED: 

Michael S. Easley 

Attorney General 

Edwin N. Speas, Jr. 
Senior Deputy Attorney General 
North Carolina Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602-0629 

Anita Hodgkiss, Esq. 
Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, PA. 

Suite 730, 700 East Stonewall Street 
Charlotte, North Carolina 28202 

RAL/52047/1 

MAUPIN TAYLOR ELLIS & ADAMS, PA. 

BY: 

“20 

Erie he 
    

Thomas A. Farr 
3200 Beechleaf Court, Suite 500 
Raleigh, North Carolina 27604-1064 
Telephone: (919) 981-4000 

 



& 

  

UNITED STATES DISTRICT COURT i 2 1996 
EASTERN DISTRICT OF NORTH CAROLINA dE 

WESTERN DIVISION 

  

rth A lE 

No. 92-202-CIV=5-BR™ 

RUTH O. SHAW, et al., 

Plaintiffs, 

V. ORDER 
  

GOVERNOR JAMES B. HUNT, et al., 

Defendants. 

V
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This matter is before the Court on motion by Plaintiffs 

and Plaintiff-Intervenors for leave to file an Amended Complaint to 

add new plaintiffs and plaintiff-intervenors who are registered 

voters residing in either the First or Twelfth Congressional 

Districts. Defendants do not oppose the motion. With the 

concurrence of Senior Circuit Judge Phillips and Chief District 

Judge Voorhees, the motion is ALLOWED. 

This July 12, 1996. 

bo AE 
W. EARL BRITT 

United States District Judge 

  

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ATT. D 

 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

  

No. 92-202-CIV-5-BR 

RUTH O. SHAW, et al., 

Plaintiffs, 

and 

JAMES ARTHUR "ART" POPE 
et al, 

bJ 

Plaintiff-Intervenors, 

V. RESPONSE TO ORDER OF 
JUNE 9, 1997 

JAMES B. HUNT, JR. et al. 

Defendants, 

and 

RALPH GINGLES, et al., 

Defendant-Intervenors. 

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The Plaintiffs respond as follows to the Court’s Order of June 9, 1997, that they 

and Plaintiff-Intervenors advise the Court whether they intend to claim that the plan 

precleared by the Department of Justice does not cure constitutional defects in the 

former plan and, if so, what is the basis for the claim: 

1. he original Plaintiffs, as well as the three additional Plaintiffs, believe that 

the new plan does not adequately cure the constitutional defects in the former plan, 

ATT. E 

 



which the Supreme Court held to be unconstitutional. Shaw v. Hunt, 116 S.Ct. 1894   

Like its predecessor, the new plan was predominately motivated by race, 

and does not survive "strict scrutiny." 

3. The Supreme Court found that in the earlier plan the Twelfth District was 

not narrowly tailored. Furthermore, a comparison of the new plan’s majority-black First 

District with the majority-black First District of the earlier plan makes clear that the 

First District in the earlier plan was also race-motivated, not "narrowly tailored," and 

could have been far more compact and more consistent with ‘communities of interest." 1] 

4. The new plan fragments counties and cities unnecessarily, ignores 

communities of interest, and remains bizarre in appearance. The differences between 

the new plan’s majority-black Twelfth District and the unconstitutional majority-black 

Twelfth District of the earlier plan are cosmetic, and the creation of the new Twelfth 

District was predominately motivated by race. 

3. The Twelfth District in the new plan is based on the racially 

gerrymandered, unconstitutional Twelfth District in the original 1992 plan and the First 

District in the new plan is based on the racially gerrymandered, unconstitutional First 

t in the original 1992 pian. Thus, each of these districts improperly relies on the 

unconstitutional earlier plan and so violates the principles established in Abrams v. 

Johnson, Nos. 95-1425, 95-1460, 1997 U.S. Lexis 3863, which was decided today, June 19, 

1997. Likewise, the Twelfth and First Districts in the new plan reflect the continuing 

efforts of the Department of Justice to interpret and apply sections of the Voting Rights  



   
Act in ar unconstitutional manner; and also for this reason the new plan violates Abrams 

v. Johnson. The relationship between the new plan and the original plan that was held 

  
unconstitutional in Shaw v. Hunt is so close that the new plan must be treated as the 

"fruit of the poisonous tree" and held to be tainted by the violations of equal protection 

in the earlier plan. 

0. By virtue of the changes that have been made by the redistricting plan 

submitted to this Court on April 1, 1997, none of the original Plaintiffs appear to have 

  

standing to challenge the new plan. United States v. Havs, 115 S.Ct. 2431 (1995). The 

additional Plaintiffs do not reside in the Twelfth District as originally constituted, nor in 

the new Twelfth District. 

7 Because of the lack of standing of the Plaintiffs, there appears to be no 

matter at issue before this Court with respect to the new redistricting plan. Although 

Plaintiffs believe and claim that the new plan is unconstitutional, they recognize that due 

to their lack of standing, any attack on the constitutionality of the new redistricting plan 

should be undertaken in a separate action maintained by persons who have standing. 

WHEREFORE, Plaintiffs pray this Court: 

1 That the Court expressly find that the First District, as configured in the 

earlier plan, was unconstitutional because of the clear absence of narrow-tailoring; 

2. That this Court not approve or otherwise rule on the validity of the 

LCD 

precleared congressional redistricting plan submitted to it on April 1, 1997; but if it does 

rule, that it hold the new plan to be unconstitutional; 

5 3 That the Court dismiss this action without prejudice to the right of any 

 



person having standing to maintain a separate action attacking the constitutionality of the 

precleared congressional redistricting plan. 

: LAE Respectfully submitted this the /7" day of June 1997. 

hoi
 

Robinson O. Everett 

Attorney for Plaintiffs 
N.C. State Bar No. 1384 
301 West Main St., Suite 300 
Durham, North Carolin 27702 
a 5 iad 682- 56 91 

  

      

nl % cL 

Attorney for Plaintiffs 
N.C. State Bar No. 22198 

147 Union Street South 

P.O. Box 810 

Concord, North Carolina 28026-0810 
Telephone: (704) 782-1173 

 



CERTIFICATE OF SERVICE 

  

The undersigned attorney hereby certifies that a copy of the attached response to 

Order filed June 9, 1997 has been served upon the attorneys for each of the parties by 

placing a copy of same in the United States mail, postage pre-paid, addressed to them as 

follows: 

Deputy Attorney General Edward Speas 
North Carolina Department of Justice 
P.O. Box 629 
Raleigh, North Carolina 27602-0629 

Anita 5. Hodgkiss, Esquire 
rguson, Stein, Wallas, Adkins, Gresham & Sunter, P.A. 

41 Kenilworth Avenue, Suite 300 
Charlotte, North Carolina 28204 

Tom Farr, Esquire 
Maupin, Taylor, & Ellis, P.A. 
P.O. Drawer 19764 
Raleigh, North Carolina 27619-9764 

JL Sq 
YL 1 

4 J | i § ~ This the // ‘day of June 1997. 

— = 

Fo ae 
    

Robinson O. Everett 

Attorney for Plaintiffs 
N.C. State Bar No. 1384 
301 West Main St., Suite 300 
Durham, North Carolina 27702 
Telephone: (919) 682-5691 

 



          
      

    
              

  
            

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vi NYS TRICYT 8 0 LK Choyral-an (Clas: Grahan aor ouaad FERVENT HIS ERIE HCO RCO Ce— Cy — Oo Faia nT; TTY WOO; 
LI ois zo Dy y ANMaaca AM adic ANitalh all DAT] Raatl fae Coan Henderson; Faekson; MeDbewel: IEEE ESO vite Re Teh HAH ora Wain; 
[Caen fo) x " Z : Red +1 £al11 ata ~chine AF Ax: a di . sg BRST aia; BEY 8Icey Cotte HCC TOT OWE TOW HRSIHP SO —=%% eFy--Btty 

District 1: Beaufort County: Chocowinity township. Richland township, 
Washington township: the remainder not in District 3: Bertie Countv. Craven Countv: 
Epworth *, Cove City *, Dover *. Fort Barnwell *. First Ward *, Second Ward *. 
Third Ward *, Fourth Ward *. Fifth Ward *. Clarks *. Countrv Club *. Rhems *: the 
remainder not in District 3: Jasper *: Edgecombe County. Gates Countv. Granville 
County: Antioch *, Corinth *. Oak Hill *. Credle *. East Oxford *. South Oxford *. 
West Oxford Elementary *. Salem *. Sassafras Fork *. Walnut Grove *: Greene 
County. Halifax County, Hertford County. Jones County: Beaver Creek *. 
Chinquapin *, Cvpress Creek * Pollocksville *, Trenton *. White Oak *: I enoir 
County: Contentnea *. Institute *. Kinston #1 *, Kinston #2 *. Kinston #6 *. 
Kinston #7 *, Kinston #8 *. Kinston #9 * Moselev Hall *. Sandhill *. Vance *: 
Martin County. Northampton County. Pezson County: Allensville. Cunningham-Chub 
Lake. Hollowav. Roxboro City # 4. Woodsdale, Roxboro City # 1. Roxboro City # 
1A. Roxboro City # 2. Roxboro Citv # 3: Pitt Countv: Avden East *. Belvoir *. 
Bethel *. Carolina *, Falkland *. Fountain *, Grifton *. Grimesland *. Pactolus *. 
Greenville #1 *, Greenville #2. Greenville #3 *. Greenville #4 *. Greenville #5 
*. Greenville #6 *, Greenville #13 *. Greenville #2 Noncontiguous: Vance County. 
Warren County. Washington Countv: Le=s Mill *. Plvmouth #1 *. Plvmouth #2 *. 
Plvmouth #3 *: Wayne County: Goldsboro #1 *. Goldsboro #2 *. Goldsboro #3 *. 
Goldsboro #35 *. Fureka *. Fremont *. Saulston *. Pinewood *: Wilson County: 
Black Creck * Gardners *. Saratoes *. Stantonsbure *. Toisnot = Wilson A ~. 
Wilson B *, Wilson C *, Wilson E *. Wilson F *. Wilson G *, Wilson H *. Wilson | *. 
Wilson M *, Wilson N *. Wilson QO *, 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

District 2: Franklin County. Granville County: Brassfield *. Butner *. Creedmoor 
*, Tally Ho *: Harnett County. Johnston County, Lee County, Nash County, Sampson 
County: Kitty Fork *, Keener *. Herring *, Newton Grove *. Northeast Clinton *. 
Central Clinton *, East Clinton *. West Clinton *. Giddensville *. Turkev *. 
Westbrook *:. Wake County: Raleigh 01-01 *. Raleiech 01-02 *. Raleiech 01-03 
Raleigh 01-05 *. Raleigh 01-06 *, Raleigh 01-07 * Raleigh 01-09 *. Raleigh 01-10 
Raleigh 01-12 *, Raleigh 01-13 *, Raleigh 01-14 *. Raleigh 01-18 *. Raleigh 01-19 
Raleigh 01-20 *. Raleigh 01-21 *, Raleigh 01-22 * Raleigh 01-23 *. Raleigh 01-26 
Raleigh 01-27 *, Raleigh 01-28 * Raleigh 01-31 *. Raleigh 01-34 *. Raleigh 01-35 3 
Raleigh 01-38 * Raleigh 01-40 *, Raleigk 01-46 *, Bartons Creek #2 *. Little River 
#1 * Little River #2 * Marks Creek #1 *, Marks Creek #2 *. Raleigh 01-27 Part, 
Neuse #1 * Neuse #2 * New Light #1 *. New Light #2 *. St. Marvs #1 *. St. 
Marys #2 * St. Matthews #1 * St. Matthews #2 *. St. Matthews #3 *. St 
Matthews #4 * Wake Forest #1 *. Wake Forest #2 *: Wilson County: Cross Roads 
*,.0Old Fields *, Spring Hill *, Tavlors *, Wilson D *. Wilson J * Wilson K *, Wilson 
L = Wilson P =, 

  

  

  

  

  

  

  

  

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]
 

  

  

  

  

  

  

  

  

District 3: Beaufort County: Bath township, Long Acre township. Pantego 
township, Washington township: Tract 9905: Block Group 5: Block 522A. Block 
528A: Camden County. Carteret County: Carteret County: Chowan County, Craven 
County: Ernul *, Vanceboro *, Bridgeton *, Truitt *. Harlowe *. Croatan * Havelock 
*. Grantham *, Sixth Ward *, Rhems *: Tract 9604: Block Group 7: Block 701. Block 
702, Block 704: River Bend *, Trent Woods *. Woodrow *: Currituck County: Dare 
County: Hyde County: Jones County: Tuckahoe *: Lenoir County: Falling Creek *, 

  

  

  

  

  

  

  

Page 2 House Bill 586 

 



  

Kinston #3 * Kinston #4 * Kinston #35 *, Neuse *. Pink Hill #1 ¥ Pmk Hill #22 
*. Southwest *, Trent #1 * Trent #2 * Woodlington *: Onslow County. Pamlico 
County: Pasquotank County. Perquimans County. Pitt County: Arthur *. Avden West 
*_ Chicod *, Farmville West *. Farmville Fast Simpson *. Swift Creek *. 
Winterville West * Winterville East *. Greenville #7 *. Greenville #8 * Greenville 
#9 *. Greenville #10 *, Greenville #11 * Greenville #12 *: Tvrrell County, 
Washington County: Scuppernong *. Skinnersville *: Wavne County: Brogden *, Mt, 
Olive *, Buck Swamp *, Fork *. Grantham *. Great Swamp *. Goldsboro #4 *. 
Indian Springs *, White Hall *, New Hope *, Pikeville *, Stonev Creek *. 

  

  

  

  

  

  

  

  

  

District 4: Chatham Countv: Albright *. Bynum *. East Mann's Chapel *, West 
Mann’s Chapel *, Bennett *. Bonlee *. Harpers Crossroads *. Cape Fear *, East 
Pittsboro *, West Pittsboro *. Goldston *, Hadley *. Haw River *, Hickorv Mountain 
*. New Hope *, Oakland *, East Williams *. West Williams *: Durham County. 
Orange County. Person Countv: Bushv Fork. Flat River. Mt. Tirzah. Olive Hill, 
Hurdle Mills: Wake County: Raleich 01-04 *. Raleigh 01-11 * Raleich 01-15 *. 
Raleigh 01-16 *, Raleigh 01-17 *. Raleigh 01-29 *. Raleigh 01-30 *. Raleigh 01-32 *. 
Raleigh 01-33 *, Raleigh 01-36 *. Raleigh 01-37 *. Raleigh 01-39 *. Raleigh 01-41 *. 
Raleigh 01-42 * Raleigh 01-43 * Raleigh 01-44 *. Raleigh 01-45 * Bartons Creek #1 
rpuckhorn ® Cary #1 2. Carv £2 * Carv #3 * Cary £4 Ro Cary #5 Cary #6 
Cary #7 % Cary #3 * Cary #9 * Cary #10 * Cedar Fork * Hollv Springs *, 
House Creek #1 * House Creek #2 *. House Creek #3 *. House Creek #4 *. 
House Creek #35 * House Creek #6 * Leesville #1 *. Leesville #2 * Leesville #3 
*, Meredith *. Middle Creek #1 *. Middle Creek #2 *. Panther Branch *, St. Marvs 
#3 * St. Marvs #4 * St. Marvs £5 *, St. Marvs #6 *. St. Marvs # 7. Swift Creek 
#1 * Swift Creek #2 * Swift Creek #3 * Swikt Creelr #4.% White Oak #1 * 
White Oak #2 =. 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

District 5: Alamance Countv: Central Boone *. North Boone *. South Boone *. 
West Boone *. Boone #35 *. East Burlington *. North Burlington *. South Burlington 
*. West Burlington *. Burlington #5 *. Burlington #6 *, Burlington #7 *. 
Burlington #8 *. Faucette *. Fast Graham *. North Graham *. West Graham *. 
Graham #3 *. Haw River *. North Melville *, South Melville *. Morton *. Pleasant 
Grove *: Alleghany Countv: Ashe Countv: Caswell County, Davie County: Forsyth 
County: Abbotts Creek #1 *. Abbotts Creek #2 *, Abbotts Creek #3 *. Belews 
Creek * Bethania #1 *. Bethania #2 re. Dethonia £3. '%. Broadbay #1 *. 
Clemmonsville #1 *. Clemmonsville #2 *. Clemmonsville #3 * Kernersville #1 *, 
Kernersville #2 *, Kernersville #3 *. Kernersville #4 * Lewisville #1 *. I ewisville 
#2 *, Lewisville #3 * Middlefork #2 *. Middlefork #3 *, Old Richmond *, Old 
Town #2 * Old Town #3 *. Salem Chapel #1 *, Salem Chapel #2 *. South Fork 
#2 *, South Fork #3 * Vienna #1 *. Vienna #2 *, Vienna #3 * Ardmore Baptist Church *, Bethabara Moravian Church *. Bible Weslevan Church». Bishop 
McGuinness *, Bolton Swimming Center *, Brown/Douglas Recreation *. Brunson 
Elementary School *, Calvary Baptist Church *. Christ Moravian Church *, Country 
Club Fire St. *, Covenant Presbvterian Church *, First Christian Church *. Forsyth 
Tech W. Camp. *. Greek Orthodox Church *, Hanes Community Center *. Jefferson 
Elementary School *. Latham Elementary School *, Messiah Moravian Church % Miller Park Recreation Center *. Mt. Tabor High School *. New Hope United 
Methodist Church *. Old Town Presbvterian Church *, Parkland High School *. 
Parkway United Church *. Philo Middle School *, Polo Park Recreation Center *, 
Reynolds High School Gvm *. Sherwood Forest Elementary School *. South Fork 
Elem School *, St. Anne’s Episcopal Church *. Summit School *. Trinity United 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

House Bill 586 
Page 3 

 



  

  

Precinct Map 
    

  

Yadkin 

Lewisville #3 

   

              

         
Id To 

Vienna #2 

Vienna #3 ™ 

Vienna #1 Old Town #2 

Tl 

    

Lewisville #1 

      

   
or 

Lewisville #2 ( 
( : J Ag 

\ EE EOE 

South Fork #3 

Clemmonsville #2 ha PY 
  

  

  

Legend 

[0
0 

97 Cong 

92 Cong 

Precinct 

County 

Lar 

  

   

  

   

Bethabara WL Church 

St. Anng's Episcopal\Church 

ti 

      

    

      

   

    

Bethania #2 i / 

Na Bethania #3 

N 

NS Forsyth 

  

   
ForestyHill Fire § 

24 Sages Recreafion Mineral Springs F.     

       
ummit School | Ashlgy Middle S 

M. L. KingiRecreation Center 

™ Reynolds High SchoolG ys 

[East Winston Librar} 

Sehool ——/ Vici 

Christ Moravian Chugh 

     

    

   

  

; WE [ 
7 ountry Club Fire/st.  GreekOrthodgy Church Happy fll Recreation Center 

> nity 
Ardipere Bap ist Chufch 

St. Andrews United MetNglLs 
: : urc \ 

ham Elementary} 5G \ 

    LL / 
Y 

esleyan Church Ke 
rkland High Sehool \ 

Z J Colenaht PresbyteriaffChurch 

  

Broadbay #2 

Carver High Sgiyoo} 

__INew Hope Unjted Methodist Church Te 

Old Town Presbyteria one ch 

14th Street Recreation Center 

ghnedy Middle Schagol Winston Lake Family YMCA 
/ 

Middlefork #2 

Broadbay #1 

/ 

Kernersville #2 
Fb Pg 

/ ™ 
bine. \ 

ate oy 

Kernersville #3 

Kernersville #4 

or ne 
> 

Kernersville #1 

Abbotts Creek #3 

\
 

  

  

Abbotts Creek #1 7 

Abbotts Creek #2     

South Fork #2 

         Clemmonsville #3 

  

  
    Arcadia Davidson 

Midway 
bbotts Creek 

  

3] 

   

Oak Ridge 

0
 

Deep River 

Guilford 

HP-24 

GH   
  

  
  

ATT. G 

 



  

  

PRECINCT NO./ NAME TOTAL. | % TOTAL | % TOTAL % % % DEM. % DEM. % DEM. CT. NUMBER 

Por. Por. Por. REG. REG. SENATE | LT. GOV. | OF APPEALS OF REP. 

WHITE AFR-AM. DEM. REP. 1990 1988 1988 VICTORIES 

                    
FORSYTH COUNTY Precincts Excluded from 1997 Congressional District 12 
  

    
  

  

  

  

  

  

401 Broadbay #1 3,128 79.83 19.76 52.22 40.79 28.62 38.02 37.37 3 

101 Abbott’s Creek #1 4,655 97.23 2.06 40.58 51.71 20.43 29.73 29.14 3 

102 Abbott’s Creek #2 4,037 95.94 3.27 38.27 51.78 22.38 29.84 29.00 3 

DAVIDSON COUNTY Precincts Added to 1997 Congressional District 12 

801 Hampton 614 97.1.7 23 37.2 59.7 19.9 22.3 27.8 3 

301 Arcadia 6,400 96.1 2.9 41.0 53.0 28.8 34.4 33.1 3 

1201 Midway 0.897 92.1 7.6 40.2 54.7 21.4 28.8 27.2 3 

101 Abbott’s Creek 6,285 97.3 2:3 35.6 59.8 19.3 23 23.5 3                       
  

> 
es | 

x. 
am -. 

 



  

  

1992 Congressional Plan 97 House/Senate Plan A 

    

  
  
  

    
         

  

   

  

   

  

  

Stokes Rockingham | Caswell | peson | Rockingham | Caswell | Person 

Granville   
              

7 be | hy 

Guilford ~~ |. 
is 

  Watauga 

  

dy o¢             
  

  

“7 | Omngef 

  

Alamance | 

Alamance     . Caldwell A    
       

Randolph Chatham  { 

     

no | Davidson : 
J A Randolph Chatham : 

        

        

  

  

  

Lee 
  _ Cabarus/ stan 

ic 
  

Montgomery 1 Liasors 

Cs Mecklenburd Montgomery Moore Harnett 

     4 

8 Cumberl] Union ’ Richmond 
.. Anson | | nN 

Lo Union ; Richmond ~~ N\ Hoke 
i bod Anson : : No 

  

  

i Scotland — 
  

               

Produced by the North Carolina General Assembly, Information Systems Division, October 14, 1999.       
ATT. I